The Regulation on Amendment of the Regulation on Commercial Communication and Commercial Electronic Messages (the "Amendment"), which introduces significant amendments to the Regulation on Commercial Communication and Commercial Electronic Messages (the "Regulation"), was published in the Official Gazette numbered 30998 on January 4, 2020. According to this Amendment, real persons and legal entities that wish to send commercial electronic messages are now obliged to register to the Commercial Electronic Message Management System ("IYS"). Therefore, commercial electronic messages will not be sent to the recipients who do not have approval on IYS. The changes brought by IYS and the Amendment are explained in detail in this article below.
- Commercial Electronic Message Management System ("IYS")
The most comprehensive change that comes with the Amendment is the introduction of IYS. In the Amendment, IYS is defined as a system that allows receiving the approval of commercial electronic messages (e.g. calls, messages, e – mails) ("commercial e – messages"), the use of the right to refuse, and the management of complaint processes. Accordingly, real persons and legal entities who wish to send commercial e – messages, except for the real persons or legal entities excluded from the scope of the Regulation as described below, must be registered to IYS. As stated on the web – site, the Service Providers will be able to apply to IYS platform by January 15, 2020, by filling in the application form1. Brands and real persons or legal entities engaged in all electronic commerce activities (the "Service Provider") registered to IYS, will have IYS numbers.
In addition, as already known, in order for the Service Provider to send commercial e – messages via e – mail, SMS, etc. for promotion or marketing purposes, to consumers, real persons or legal entities acting on occupational or other purposes (the "Recipient"), the Service Provider must first obtain approval2 from such persons, except for the cases described in Article 6 of the Regulation. Another change that comes with the Amendment is that the approval may be given by the Recipients through IYS as of September 1, 2020; after this date, commercial e – messages cannot be sent to the Recipients who do not have approval on IYS.
According to the changes made with the Amendment, the records of the above – mentioned
approvals must be retained for a period of 3 years from the date of expiry of approval; for other records of commercial e – messages, the beginning of this period is the date of registration.
Prior to the above – mentioned changes, the Service Provider was obliged to prove that the approval has been received in all approvals; however, with the Amendment, the burden of proof is on the Service Provider for only in approvals not received through IYS as of September 1, 2020. The approvals not received through IYS must be registered by the Service Provider to IYS within three workdays as of September 1, 2020; any unregistered approvals will not be considered invalid.
Furthermore, it is not mandatory to obtain the prior approval for commercial e – messages sent to the e – communication addresses of the Recipients who are merchants or craftsmen. However, the e – communication addresses of these Recipients must be registered by the Service Provider to IYS; it will be checked whether the Recipients have exercised their rejection rights through IYS, as of September 1, 2020. Thus, a positive solution is introduced by the Amendment in order to prevent receiving commercial e – messages for the Recipients who are merchants or craftsmen.
After the approval, the following will be included in the title or content of the commercial e – message: the Central Registration System ("MERSIS") number and the commercial name for merchants; name, surname, personal or tax identification number for craftsmen. In addition, the Service Provider may include other information that identifies itself, such as a brand or company name. Another change that has been introduced with the Amendment is related to voice calls. Accordingly, the commercial name for merchants and name, surname for craftsmen must be mentioned in the voice calls.
In addition, the Recipients have the right to refuse receiving commercial e – messages without giving any reason and the Service Providers must cease sending commercial e – messages to the Recipient within three workdays following the rejection. According to the change regarding the rejection with the Amendment, the Service Provider is obliged to notify the rejection to IYS as of September 1, 2020, within three working days. The Recipients may also exercise their right to refuse through IYS.
For detailed information regarding IYS, please click here.
- The Authority Responsible for IYS: The Union of Chambers and Commodity Exchanges of Turkey ("UCCET")
IYS was established by the UCCET by authorization of the Ministry of Commerce (the "Ministry"), and it will be made available to the Service Providers as of March 1, 2020. The UCCET will prepare the technical infrastructure for the recording of approval and rejection information to IYS, obtaining approval through IYS, the exercise of the right to refuse, receiving commercial e – message complaints, reporting, managing the complaint process quickly and effectively, and for using by the intermediary service providers, and it will be made available to the Ministry. The UCCET is also obliged to carry out other duties and transactions requested by the Ministry for IYS and will take the necessary technical measures in order to prevent the defects of transmission of commercial e – messages.
- Intermediary Service Providers
As already known, the Service Provider may also send commercial e – messages to the Recipients, which had previously approved, through the Intermediary Service Providers (the "Intermediary Service Provider"), defined as real persons and legal entities providing the e – commerce environment for the economic and commercial activities of others. However, with one of the key changes introduced with the Amendment, the Intermediary Service Providers cannot send the Service Providers' commercial e – messages who are not registered to IYS, nor cannot send messages to the Recipients without approval on IYS. However, this obligation does not apply to commercial e – messages sent via e – mail. In addition, the Intermediary Service Providers are obliged to notify IYS if the Recipients close the subscription line.
Apart from this, the Intermediary Service Providers have an obligation to adapt their commercial e – message systems to the requirements laid out by IYS. This obligation will not apply to commercial e – messages sent via e – mail.
In order to become an intermediary service provider; the administrative, financial and technical competencies to be determined by IYS must be met and those who meet these requirements may apply. Necessary requirements will be announced soon by IYS.
The obligations of the aforementioned Intermediary Service Providers will come into force as of September 1, 2020.
- Transferring Existing Databases to IYS
The approvals received within the scope of the Regulation must be transferred to IYS by the Service Providers until June 1, 2020. When this period is taken into consideration, it can be said that real persons or legal entities who wish to send commercial e – messages must register to IYS by June 1, 2020, at the latest. At the end of this period, a message will be sent to the Recipients by IYS informing them that the approvals have been uploaded to IYS and that they will be deemed valid if they are not checked until September 1, 2020, and that the rejection can be used through IYS. The Recipients must check the approvals registered to IYS until September 1, 2020, and commercial e – messages sent after the expiry of this period will be deemed approved.
The periods mentioned above may be postponed by the Ministry for three months.
- Complaint Processes
Prior the Amendment, complaints related to the Service Providers may be made through e – Government, or the Ministry's website, or in writing form to the provincial directorate. As a result of the Amendment, it may now be made through IYS as well. As of September 1, 2020, applications for complaints will be subject to preliminary examination through IYS. After the preliminary examination, the relevant information and documents will be obtained by the provincial directorate from the related person and the complaint will be finalized. However, if deemed necessary, the personnel assigned by the provincial directorate for the inspection may be able to carry out on – site inspections.
In addition, as of September 1, 2020, the Intermediary Service Provider must respond within fifteen days through IYS to requests for information and documents related to the filed complaint. This obligation does not apply to commercial e – messages sent by e – mail.
- Issues Out of Scope of the Regulation
The previous version of the Regulation and the Amendment does not apply to:
- The subscribers and users of operators within the scope of the Electronic Communication Law numbered 5809 and dated November 5, 2008; commercial electronic messages sent exclusively to promote or market its own goods and services or brand,
- Messages sent to its students and its students' parents by foundation universities and other private education and training institutions,
- Messages sent to the members of the public institutions by professional organizations, associations that are beneficial to the public and foundations granted tax exemption, regarding the activities of their own commercial enterprises,
- Information messages regarding the broadcasting services made by radio and television broadcasting institutions in order to inform and educate the public within the scope of the Establishment and Broadcasting Services of Radio and Television Enterprises Law numbered 6112 and dated February 15, 2011,
- Messages sent by the State, local administrations and other public legal entities in order to inform the public.
In line with the main changes that are introduced with the Amendment, all real persons or legal entities who wish to send commercial e – messages, except for the cases that fall out of the scope of the Regulation, must be registered to IYS. After the registration, all commercial e – message permissions and approvals of the Recipients must be uploaded to IYS by the Service Providers until June 1, 2020. The commercial e – messages cannot be sent to the Recipients who are not approved in IYS as of September 1, 2020, and the approvals not registered in this system will be deemed invalid.
It is certain that the Amendment also affects the personal data protection governance of the Service Provider as it creates a new purpose and means of processing and transfer of the Recipient's personal data. Therefore, data controllers must update and alter their personal data inventory and any other legal documentation (policies, consent letters) accordingly.
For a summary, please see the timetable below:
January 1, 2020
- The date of publication of the Amendment in the Official Gazette.
January 15, 2020
- The application date to IYS for the Service Providers.
March 1, 2020
- The date on which IYS is predicted to be made available to the Service Providers.
June 1, 2020
- The date for the existing database transfers of the received approvals.
- Last registry date of IYS for the Service Providers.
- The opening date of IYS for the Recipients.
September 1, 2020
- The final date for the Recipients to check their approval status.
- The Service Providers will be liable to notify rejection of the Recipients to IYS within three workdays.
- The opening day of IYS for the operators and STHs.
1 The information and documents to be included in the application form are as follows:
- For legal entities: Company name, tax identification number, MERSIS number and invoice address, signature circular, trade registry gazette indicating company name and its authorities, trademark registration documents (not mandatory) and wet signed IYS Service Contract, name and surname of the signatory, date of birth, identification number, mobile number, e – mail address.
- For real persons: identification number, signature circular or signature declaration instead of MERSIS number (not mandatory), provided that the condition of providing the information and documents of the person authorized to sign remains the same.
2 The information to be uploaded to IYS platform is as follows:
- Contact address,
- Authorization type (approval / rejection),
- Approval date,
- Communication channel (calls, messages, e – mails),
- Authorization source (e – contact address, wet signed approval form, web – site, etc.).
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.