EVALUATION OF THE AMENDMENTS WHICH WERE MADE TO ELECTRONIC COMMERCE LAW

I. INTRODUCTION

Electronic Commerce Law numbered 6563 and dated 23.10.2014 entered into force on 01.05.2015 by being published in the Official Gazette dated 05.11.2014 and numbered 29166[1]. The Law numbered 7416 and dated 01.07.2022 for the Amendment of the Law on the Regulation of Electronic Commerce which will amend the current regulation was published in the Official Gazette dated 07.07.2022 and numbered 31889[2]. Some of the changes will enter into force on 01.01.2023 while some of the changes will enter into force on 01.01.2024 and the explanation regarding this issue will be given below.

II. CONTENT OF THE CHANGES

a.The first amendment which was made to determine which businesses are not considered to be electronic commerce intermediary service providers or electronic commerce service providers with the provision added to the 3rd paragraph of the 1st article of the current law. According to it; businesses operating in the fields of travel agency, civil aviation, private pension, banking, insurance, financing, capital market, payment services, betting and games of chance and electronic communication shall not be considered as electronic commerce intermediary service providers or electronic commerce service providers.This change will enter into force on 01.01.2023.

b.The second amendment which was made to introduce new definitions with the provisions added to the 2nd article of the current law. "Intermediary Service Providers" will be defined as "Electronic Commerce Intermediary Service Provider" while "Service providers" will be defined as "Electronic Commerce Intermediary Service Providers". In addition to it, the definitions of "Environment of Electronic Trade", "Marketplace of Electronic Trade", "Information System of Electronic Trade (ETBIS)", "Net Transaction Volume" and "Economic Integrity" will be added.This change will enter into force on 01.01.2023.

c.The third amendment which was made with the amendment made in the 9th article of the current law is about the way to be followed in case of illegal content. As in the current law, intermediary service provider shall not be responsible for any illegal content related to the content offered by service provider and the goods or services which are subject to the content, unless there is a contrary provision in other laws. However, different from the current law and in addition to this regulation, if electronic commerce intermediary service provider is aware of the content offered by electronic commerce service provider is unlawful, electronic commerce intermediary service provider is obliged to unpublish this content without delay and notify the relevant public institutions and organizations about the unlawful matter. Once again, different from the current law and in addition to this regulation, electronic commerce service provider will unpublish the product which is subject to the complaint and notify the situation to itself and the right holder upon the right owner's complaint based on information and documents regarding the violation of intellectual and industrial property rights. Upon the electronic commerce service provider's submission to intermediary service provider based on the information and document showing the opposite of the complaint, the product which is subject to the complaint will be republished. In the complaint and objection, the clear identity and address information of the relevant parties, information about the product which is in dispute, the reasons for the removal of the product from publication or the necessity of publishing it and other issues determined by the regulation will be included. The right of the people who are concerned to apply the judicial and administrative authorities according to general provisions shall be reserved. This change will enter into force on 01.01.2023.

d.The 4th amendment which was made is removal of Article 10 titled "Protection of Personal Data". This change will enter into force on 01.01.2023.

e.The 5th amendment which was made occured by making an amendment to the 1st paragraph of the 11th article which regulates the authority of Ministry. In addition to authorities which are ensuring application of the law and development of electronic commerce in existing law, authority of protecting effective and fair competition environment, regulating the activities of service provider and intermediary service provider and determination of the mandatory elements to be included in the intermediary contract have been brought.

Paragraph 2 of Article 11 is a new regulation and it is states that Ministry will be authorized to conduct audits and explain the results of the audit in order to ensure the application of the law,appoint an expert in cases that require special expertise or technical knowledge during the audit, determine the procedures and principles regarding the rights, obligations and assignment of the experts with regulations.

The regulation in the second paragraph of the 11th Article of the current law has been repeated as the 3rd paragraph of the 11th Article. Accordingly, the personnel assigned to audit by the Ministry of Commerce will be authorized to request, examine and take samples of all kinds of information, documents and books including those kept in the electronic environment, regarding the matters falling under the jurisdiction of Ministry within the scope of the law and to receive written and verbal information from the relevant people. Unlike the current regulation, the expression of "All kinds of information, documents and boks including those kept in electronic environment" is used. In addition to it, intermediary service provider and service provider will be obliged to keep the information, documents, ledgers and electronic records of the business and transactions within the scope of the regulation for 10 years from the date of the work or transaction.

Since the 3rd and 4th paragraphs of the 11th Article of the current law and the 2nd paragraph of the 11th Article are new regulations, they have been repeated as the 4th and 5th paragraphs of the 11th Article. Finally, paragraphs 6 and 7 have been added to Article 11. According to it, Ministry shall be authorized to determine the procedures and principles regarding the application of the obligations set forth in Articles 3, 4, 6, 7 and 8 of the law to intermediary service providers. Furthermore, Ministry will be authorized to receive customer information of natural or legal persons who send commercial electronic messages via voice call and short message from the Information Technologies and Communication Authority.

These changes will enter into force on 01.01.2023.

f.The 6th amendment is about administrative fines that will be imposed in case of non-compliance with the provisions of the law. There has been no change until subparagraph (ç) of the first paragraph of the 12th Article which regulates the administrative fines. However, subparagraphs (ç) and (d) have been amended and new clauses regulating the amount of administrative fines have been added from subparagraph (e) to subparagraph (ş). Electronic commerce service provider who is in unfair practice of electronic commerce with the offer will be fined from 10.000 Turkish Liras to 100.000 Turkish Liras for each electronic commerce service provider with unfair practice. Administrative fine of 5.000 Turkish Liras will be imposed for each electronic commerce service provider in cases such as forcing the electronic commerce service provider to sell goods or services with a campaign including unilateral changes in sales prices by electronic commerce intermediary service provider.

Paragraph 4,5 and 6 have been added to Article 11 of the current law while the 3rd paragraph was repeated as the 7th paragraph. The third paragraph of the 11th Article which will enter into force is a new regulation. According to this; except for environment of electronic commerce included in the net transaction volume,an administrative fine of 10 million Turkish Liras will be imposed on electronic commerce intermediary service provider, which provides access between its own environments of electronic commerce and promotes each other in these environments, and 60 days will be given to eliminate this violation. In the event that electronic commerce intermediary service provider provides an electronic environment for the publication of advertisements for goods and services, an administrative fine of 20 million Turkish Liras will be imposed on electronic commerce intermediary service provider, which allows to make a contract or place an order for the supply of goods or services in the same environment, and 30 days will be given to eliminate this violation. If the violation is not eliminated within the given time, an administrative fine of 40 million Turkish Liras will be imposed, and 15 days will be given to eliminate the violation. In the notification for granting this period, it will be stated that if the violation is not eliminated, Ministry may decide to remove the content and/or block access.From this notification on, only works and transactions related to past orders will be carried out. If the violation is not eliminated within the given period, Ministry may decide to remove the content and/or block access to the relevant internet addresses of the electronic commerce intermediary service provider and/or the electronic commerce service provider. This decision will be sent to the Access Providers’ Association. Requirement of the decision will be fulfilled immediately, however, applications can be made to the Criminal Judgeships of Peace against these decisions. Against the decision which is made by Criminal Judgeship of Peace, an appeal can be made in accordance with the provisions of the Code of Criminal Procedure numbered 5271.

According to the 4th paragraph of the 11th Article that will come into force; if the violation is not eliminated within the time given by Ministry despite the application of the administrative fines regulated in the first paragraph of Article 11, or if the same violation is repeated within one year from the date of the notification of the fine, double administrative fine of previous fine will be applied.

According to the 5th paragraph of the 11th Article that will come into force; in cases where the actions regarding the administrative fines regulated in the 1st paragraph of the 11th Article are carried out by acts and transactions aimed at misleading Ministry, the said penalties are applied ten times.

According to the 6th paragraph of the 11th Article that will come into force; The total amount of administrative fines for a calendar year can’t exceed 500 million Turkish Liras for an intermediary service provider or service provider with a net transaction volume of less than 60 billion Turkish Liras.

These changes will enter into force on 01.01.2023.

g.Unfair commercial practices are regulated in electronic commerce with the 7th amendment. With the Additional Article-1, unfair commercial practices are defined and it is stated that unfair commercial practices are prohibited in electronic commerce. Then, unfair commercial practices were counted one by one. This change will enter into force on 01.01.2023.

h.The obligations of electronic commerce intermediary service provider are regulated in 12 paragraphs with the 8th amendment. Subparagraphs (a) and (b) of the third paragraph of this amendment made with Additional-Article 2 will enter into force on 01.01.2023 to be applied to the net transaction volumes for the 2022 calendar year and subparagraph (b) of the second paragraph and tenth paragraph of this amendment made with Annex-Article 2 will enter into force on 01.01.2024 while other provisions will enter into force on 01.01.2023.

i.The obligations of electronic commerce service provider are regulated in Annex-Article 3 in 8 paragraphs with the 9th amendment. This regulation will enter into force on 01.01.2023.

j.The way to be followed on how to obtain an electronic commerce license is explained with the 10th amendment. The 6th paragraph of Additional Article-4, consisting of 9 paragraphs, will enter into force on 01.01.2024 and its other provisions will enter into force on 01.01.2023. Electronic commerce service provider's obligation to obtain a license within the scope of Additional Article-3 and electronic commerce intermediary’s obligation to obtain a license within the scope of Additional Article-4 shall be fulfilled as of 01.01.2025.

k.With the last change, how the transition process will work has been discussed. This article, which is in form of 4 paragraphs, will enter into force on 01.01.2023. The relevant provisions of the intermediary contracts made before the effective date and which are not brought into compliance with this regulation within 6 months from the same date will be deemed invalid.

III. CONCLUSION

With the pandemic process affecting the whole world, there have been many changes and developments in the electronic commerce sector.The developments and changes which were experienced necessitated updating the laws as well.