The Law on Amending the Law on the Regulation of Electronic Commerce (“Law”) was adopted by the Turkish Parliament on 01.07.2022 for reasons that the previous version of Law No. 6563 on the Regulation of Electronic Commerce was not sufficient to solve the problems created by new business models brought by technological developments and digitalization, provide deterrent sanctions against unfair commercial practices, against the rapid growth and change of the sector and the effects of practices that distort competition.

Significant amendments have been made to the text of Law No 6563, and new articles have been added to the Law. In addition to the existing intermediary service provider and service provider definitions, the definitions of electronic commerce intermediary service provider and electronic service provider are included in the Law. It has been regulated those enterprises operating in the fields of travel agency, civil aviation, individual pension, banking, insurance, financing, capital market, payment services, betting and games of chance, and electronic communication will not be considered e-commerce intermediary service providers or e-commerce service providers. In addition, definitions of electronic commerce environment, electronic commerce marketplace, electronic commerce information system (ETBIS), net transaction volume, and economic unity are provided. Amendments have been made to the Law, especially regarding the responsibilities and obligations of e-commerce intermediary service providers and e-commerce service providers, the sanctions to be applied in case of breach of these obligations, unfair commercial practices in e-commerce, ministry inspection, and e-commerce license. Most amendments will enter into force on 01.01.2023, while others will enter into force on 01.01.2024.

The significant amendments brought by the Law are examined under the following headings.

1. Significant New Definitions

The concepts of net transaction volume and economic unity are frequently used in many parts of the Law. According to the Law;

Ø Net transaction volume: “The sum of the final invoice values or the values of the documents substituting the invoice, which are required to be issued by all service providers for e-commerce intermediary service providers in e-commerce marketplaces where they provide intermediary services; and as for e-commerce service providers, for the sales made in a certain period in its e-commerce medium that does not have characteristics of an e-commerce marketplace, excluding cancellations and returns.”

Ø Economic Unity: “A person’s directly or indirectly holding at least 25% of the shares or majority of the voting rights of a commercial company or holding shares enabling it to obtain resolutions to manage the commercial company; having the rights to elect the majority of members that can obtain resolutions in the management organ per the articles of association; constituting the majority of the voting rights alone or along with other shareholders apart from its own voting rights as part of an agreement or holding the commercial company under its control within the scope an agreement or, depending on these circumstances, the relationship between all commercial companies and businesses belonging to this person, or the management of more than one commercial company by the same person or persons, regardless of whether they are shareholders or not.”

2. Liability for Unlawful Content

The intermediary service provider shall not be liable for the unlawful content submitted by the service provider and the goods or services subject to the content unless otherwise stipulated in other laws. However, the e-commerce intermediary service provider, is defined in the Law as “the intermediary service provider that enables placing orders or executing agreements pertaining to the provision of e-commerce service providers’ goods or services in the e-commerce marketplace” learns that the content submitted by the e-commerce service provider is unlawful, it will remove this content without delay and notify the relevant public institutions and organizations of the unlawfulness.

Upon the right owner’s complaint based on information and documents regarding intellectual and industrial property rights infringements, the e-commerce intermediary service provider will remove the e-commerce service provider’s product subject to the complaint from publication.

Suppose the e-commerce service provider submits its objection based on information and documents contrary to the complaint. In that case, the e-commerce intermediary service provider will republish the product subject to the complaint.

3. Authority of the Ministry

With the Law, the authority of the Ministry of Commerce (“Ministry”) has been expanded, and the Ministry is authorized to regulate the activities of the intermediary service provider and the service provider, to determine the essential elements to be included in the intermediation agreement, to conduct audits, to appoint an expert in cases requiring special expertise or technical knowledge during the audit, and to determine the procedures and principles regarding the rights and obligations and assignment of the expert by regulation. In addition to these issues, it has been regulated that the Ministry is authorized to receive the information of natural or legal persons who send commercial electronic messages via voice call and short messages from the Information Technologies and Communication Authority.

The obligation of the intermediary service provider and the service provider to keep the information, documents, ledgers, and electronic records regarding their business and transactions within the scope of the Law has been increased from three years to ten years.

4. Unfair Commercial Practices in E-commerce

The practices of the e-commerce intermediary service provider that significantly disrupt the commercial activities of the e-commerce service provider, reduce its ability to make a reasonable decision, or force it to take a certain decision, causing it to become a party to a commercial relationship that it would not normally be a party to, are accepted as unfair commercial practices and are prohibited.

It is regulated that the following practices will be considered unfair commercial practices in any case in the Law;

a) Failure to pay the sales price to be paid to the e-commerce service provider in return for the sale of goods or services, at the latest, within five working days from the date on which the e-commerce intermediary service provider is at the disposal of the service provider and the order reaches the buyer.

Payments made to the payment service provider with which the e-commerce intermediary service provider is in economic unity are considered to be made to the e-commerce intermediary service provider.

b) Forcing the e-commerce service provider to sell promotional goods or services, including unilaterally changing the sales price.

c) The conditions of the commercial relationship between the e-commerce service provider and the intermediation agreement made in writing or electronically are not determined, or the agreement is not provided to be clear, understandable, and easily accessible.

d) Making retrospective or unilateral changes in the intermediation agreement to the detriment of the e-commerce service provider, or including a provision that allows this.

e) Receiving a fee from the e-commerce service provider, even though no service is provided or the type of service provided and the amount or rate of the service fee are not specified in the intermediation agreement.

f) Dropping back of the e-commerce service provider in the ranking or recommendation system, restriction, suspension, or termination of the service provided, despite the absence of any objective criteria in the intermediation agreement or on the grounds that an application has been made to the public institutions or judicial authorities.

5. Obligations

5.1. Obligations of E-commerce Intermediary Service Providers

The obligations of the e-commerce intermediary service providers are determined according to the net transaction volumes, and the obligations increase as the volume increases.

5.1.1. Obligations Applied to All E-commerce Intermediary Service Providers Regardless of Net Transaction Volume Value

Ø The intermediary service provider cannot offer for sale or act as an intermediary in the sale of goods that carry the brand itself or the persons with whom it has economic unity, or for which it has the right to use the brand in places where it provides intermediary services. If these goods are offered for sale in different electronic commerce environments, it is prohibited to provide access between these environments and to promote each other. Goods that carry the brand or have the right to use the brand of the persons who obtain more than half of the total sales revenue from sales other than e-commerce are excluded from the scope of this provision and are considered an exception to the provision.

Ø The e-commerce intermediary service provider is obliged to provide the e-commerce service provider to place the information in the documents required under the Tax Procedure Law in the e-commerce marketplace where the sale is made.

Ø It is forbidden for the e-commerce intermediary service provider or e-commerce service provider to engage in marketing and promotion activities in online search engines by using their registered trademarks, which constitute the main element of the domain names registered in the Electronic Commerce Information System (ETBIS), without the prior consent in written or electronic form.

Ø The e-commerce intermediary service provider is obliged to verify the identification information of the e-commerce service provider through the documents it has obtained from itself or from the electronic systems of the relevant institutions that are open to access.

5.1.2. Additional Obligations Applied to E-commerce Intermediary Service Providers with a Net Transaction Volume of Over TRY 10 billion in a Calendar Year

Ø Data obtained from the e-commerce service provider and buyer will only be used to provide intermediary services. Therefore, it is prohibited from being used while competing with e-commerce service providers in e-commerce marketplaces or other e-commerce environments where it offers intermediary services.

Ø Technical opportunity will be provided for the e-commerce service provider to carry the data obtained due to its sales free of charge and to provide free and effective access to these data and the processed data obtained from them.

Ø Except for e-commerce environments, which are included in the net transaction volume, they are prohibited from providing access between their own e-commerce environments and promoting each other in these environments.

Ø They are obliged to inform the Ministry about changes in shares such as the establishment of a company, company shares, acquisition or transfer of company shares, and to submit the reports prepared by the independent audit firm and including the transactions for the detection of unlawful issues regarding the content of e-commerce service providers, and the violations detected as a result of this, to the Ministry.

5.1.3. Additional Obligations Applied to E-commerce Intermediary Service Providers with a Net Transaction Volume of TRY 30 billion and a Number of Transactions Over 100.000 (Excluding Cancellations and Refunds) in a Calendar Year

Ø They will be able to spend on advertising at the rate of two per cent for the portion of thirty billion Turkish lira and at the rate of three per thousand for the portion above thirty billion Turkish lira of the net transaction volume for the same calendar year, for which the twelve-month average Consumer Price Index change rate has been applied. The amount calculated accordingly constitutes the total advertising budget of the e-commerce intermediary service providers included in the net transaction volume and the e-commerce service providers operating in the e-commerce marketplace within their economic unity. This budget also constitutes the limit of advertising expenditures of e-commerce intermediary service providers and e-commerce service providers. This budget can be used at a maximum of one-fourth quarterly in a calendar year.

Ø They could offer promotions, rewards, points, coupons, gift vouchers, and similar opportunities at the rate of two per cent for the portion of thirty billion Turkish liras and three per thousand for the part above thirty billion Turkish liras of the twelve-month average Consumer Price Index change rate applied for the same calendar year of the net transaction volume. The amount calculated accordingly constitutes the total discount budget that can be made to the buyers and e-commerce service providers in the e-commerce marketplace by the e-commerce intermediary service provider and the persons with whom it is in economic unity. This budget can be used at a maximum of one-fourth quarterly in a calendar year

Ø It is prohibited for the e-commerce service provider to restrict its commercial relations, offer goods or services at the same or different prices through alternative channels, advertise, and force any person to provide goods or services. It will not be able to include any provision that allows this in the intermediation agreement.

5.1.4. Additional Obligations Applied to E-commerce Intermediary Service Providers with a Net Transaction Volume of TRY 60 billion and a Number of Transactions Over 100.000 (Excluding Cancellations and Refunds) in a Calendar Year

Ø Except for the credit payment transactions made by credit cards and other payment transactions, electronic commerce intermediary service providers may not engage in any activity to facilitate the provision of the services (including credits) of banks or financial institutions that are of the same economic unity with them.

Ø E-commerce intermediary service providers will not allow the acceptance of electronic money issued by electronic money institutions in which they are of economic unity.

Ø E-commerce intermediary service providers will not be able to provide services related to prepaid vehicles that can only be used in a particular service network or allow these services to be provided by those with economic unity.

Ø Except for the sales in the e-commerce marketplaces where they provide intermediary services, the sales they make as their e-commerce service provider, and their sales outside of e-commerce, they will not be able to carry out activities such as goods transportation, transportation business organization, postal service provider.

Ø If they provide an electronic environment for the publication of goods or services announcements, they will not be able to provide an opportunity to make an agreement or place an order for the supply of goods or services in the same environment. In the event that these services are provided by themselves or by persons with whom they have economic unity in a different electronic environment, they will not be able to provide access between these environments and will not be able to promote each other.

5.2. Obligations of E-commerce Service Providers

It is regulated that some of the obligations of e-commerce intermediary service providers mentioned above will also find application for e-commerce service providers in the same way, in the Law. The liabilities of e-commerce service providers are determined according to their net transaction volumes, as are the liabilities of e-commerce intermediary service providers.

5.2.1. Obligations Applied to All E-commerce Service Providers Regardless of Net Transaction Volume Value

Ø It is forbidden for the e-commerce service provider to engage in marketing and promotion activities in online search engines by using their registered trademarks, which constitute the main element of the domain names registered in the Electronic Commerce Information System (ETBIS), without the prior consent in written or electronic form.

5.2.2. Additional Obligations Applied to E-commerce Service Providers with a Net Transaction Volume of Over TRY 10 billion and a Number of Transactions Over 10 million (Excluding Cancellations and Refunds) in a Calendar Year