Turkey’s solid and rapidly expanding e-commerce market volume reached 18.9 billion Turkish Liras as of the end of 2014. The Turkish e-commerce sector accounts for 1.6% of the country’s overall retail sector. Even though this number is well below the 4.5% average of emerging countries, the steady growth percentages over the years have proven the potential in the market.
According to the data provided by TÜSİAD (Turkish Industry & Business Association) and TÜBİSAD (Turkish Informatics Industry Association) the market volume growth average between the years 2008 and 2012 was 35.5%, and this promising growth was maintained in 2013 and 2014 despite the slower economy. However, the need for regulation in the sector was overlooked by the authorities until very recently. The first sector-specific piece of regulation, the Law on Regulation of Electronic Commerce (“E-commerce Law”), was prepared in parallel with the EU Directive on E-Commerce (numbered 2000/31/EC). It came into force on May 1, 2015.
The E-commerce Law regulates the general rules and principles of the relationship between service providers and customers in e-commerce platforms. It also includes an obscure clause on protection of personal data in the sector, pursuant to which service providers are responsible for the protection of the retained personal data and the data cannot be shared by third parties without the prior consent of the data subject.
Significantly, the E-commerce Law also introduced an opt-in permission system in Turkey with respect to unsolicited electronic communications for direct marketing purposes. Before this law, such unsolicited electronic communications were only loosely regulated in Turkey –they were permitted provided that recipients were granted an easy and free-of-charge opportunity to opt out at the time of first communication. When considered in conjunction with the absence of a legislative framework in Turkey regarding the protection of personal data, personal information of the data subjects was easily accessed and regularly used without reasonable limitations. In this environment, commercial use of electronic communication as a means of direct advertising had become almost unsettling. Because of the wide range of advertising and solicitation topics, the discomfort experienced by consumers was not limited to the e-commerce sector, as would be expected.
Now, the Regulation on Commercial Communication and Commercial Electronic Messages (“Commercial Communication Regulation”) has been published, and it came into effect on July 15, 2015. The Commercial Communication Regulation is prepared based on the E commerce Law in order to eliminate the uncertainties of the law and shed some light on the implementation.
Under the new set of rules, any kind of commercial electronic communication – including by means of automated calling machines, telefaxes, e-mails, or text messages to the recipients – is banned unless prior consent is received. In addition, recipients that consented to communication must be permitted to opt out at any time and without specifying any reasons. Further key points that should be taken into consideration are as follows:
- The opt-in permission system will not apply to B2B relationships; however, businesses are permitted to use an opt-out option at any time.
- Consent means the recipient’s explicit consent. Silence of the recipient cannot be interpreted as consent.
- There are no formal requirements for obtaining the prior consent of the recipient. Such consent can be obtained in writing or by using any form of electronic communication. However, if the consent is obtained in writing it must bear the signature of the recipient and if it is obtained through electronic communication then it should include a declaration of positive intent.
- Consent cannot be actively requested by sending an electronic mail or text message to the recipient or deemed obtained through disclaimers and/or general terms and conditions.
- An opt-out option must be specified in each electronic communication with the recipient.
Recipients can resort to the complaints procedure in case they are faced with unlawful electronic communication and failure to comply with the new law. Violations of the E commerce Law (and the Commercial Communication Regulation) are punishable by administrative fines.
Yasemin Yanar is an Associate in Locke Lord’s Istanbul office. She can be reached at email@example.com.