Selen IBRAHIMOGLU GURES
Attorney at Law / Managing Partner
01 September 2015
The main purpose of the Law on Electronic Commerce (“Law”) effective as of May 1, 2015 is to define the liabilities of the service providers or intermediaries in terms of electronic commerce and for communicating with their customers.
In this context a major issue from the consumer’s point of view is the wish to regulate the receipt of “junk mails/messages”. Therefore the new legislation has been highly appreciated by the consumers, as unsolicited commercial communication from service/intermediary service providers had grown to be a major disturbance for them in the last decade.
The Law is mainly based on Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ("Directive 2000/31/EC"). In this context the unsolicited commercial communication could be rejected by consumers by way of opt out registering.
Nevertheless, “Regulation on Electronic Communication and Electronic Commercial Messages” (“Regulation”) came into effect on July 15, 2015 regulating unsolicited commercial communication like it is defined in Directive 2002/58/EC of the European Parliament and of the Council of July 12, 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (“Directive 2002/58/EC”), accepting the opt-in system. This system foresees that prior given consent of the subscriber would need to be obtained for unsolicited commercial communication.
This and some other differences in the mentioned source legislations might have created incoherence in the purpose of the Law and the Regulation and their application vis-à-vis the benefits of the consumers.
When one makes strict interpretation of the mere language of the Law and the Regulation in terms of conditions and procedures of sending of unsolicited messages, it is obvious that some electronic commerce activities might negatively be affected beyond the purpose of protection of consumer rights.
That is why still many discussions are going on between the associations, institutions and Ministry of Customs and Trade to be able to create a unique resolution to the commercial needs of both the service provider/intermediaries and consumers. Some further changes in the Regulation may occur in the following months based on inputs of the public and private institutions and market players.
GETTING THE APPROVAL OF THE CONSUMER TO SEND ELECTRONIC COMMUNICATION- WHO SHALL BE THAT PERSON?
Article 6 of the Law states that, “the commercial electronic messages shall be sent to the receivers only with their prior consent” and it is stated that this consent shall be taken in writing or via all kinds of electronic communication devices. The corresponding article in the Regulation, Article 5, regulates that the approval should be obtained by the service provider who will send commercial electronic message forpromoting, and/or advertising the goods and services. At this point there are ambiguities in terms of the party who will take the approval.
Literal interpretation as stated above would drive that only the party who will send the electronic commercial message should physically receive the approval of the consumer.
Whereas this interpretation might go beyond the protection of the consumer, because consumers may give their approvals to those who at the time of receipt of such consent were not a transaction party to them.
On the other hand, there may be no obstacle for such approvals to be physically received by appointed agents or mandates for the said service provider, as long as the approval explicitly includes the issues and parties to whom such consent is being given.
Yet again can more than one service provider receive the approval of a consumer under one consent to be executed by the consumers is another issue that will need to be clarified.
INTERMEDIARY SERVICE PROVIDERS WITHIN THE CONTEXT OF LAW AND REGULATION
Law and the Regulation defines “intermediary service providers” as “the real person and legal entities who provide the electronic environment to the other parties for their financial and commercial activities”.
Determination of who is an “intermediary service provider” in the market is also important in terms of sending the electronic communication and receipt of the approval. Service providers can send messages via intermediary service providers, however, intermediary service providers could not send electronic commercial messages to the receivers on behalf of other parties in order to introduce, promote or advertise the goods and services.
WHAT TO DO WITH THE EXISTING CONSUMER DATABASE UNTIL OCTOBER 15, 2015?
Temporary Article 1 of the Regulation states that the approvals which have been taken before July 15, 2015 and including an explicit consent of the receiver are deemed to be valid approvals to be used in the future as well.
On the other hand, according to the same article before July 15, 2015, if a general approval is taken and electronic commercial messages have been sent upon these approvals on behalf of a third party, that third party on whose behalf the approval had been taken may contact the consumer for once within 3 months as of July 15, 2015 to get its own approval.
Now, the question in the market is what are the limits of an explicit vs general approval and which service providers should be sending such additional consent until October 15, 2015?
The answer to this question again lies on the interpretation of who is authorized or obliged to get the consent to send electronic communications to the consumers.
We are on close watch on the developments of this important issue especially for telemarketing companies in the Turkish market.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.