Especially since the end of the 1990s, the demand on electronic commerce sector has increased, by the virtue of the widespread use of the internet, and it may be briefly defined as the promotion, sales and payment transactions of products and services over computer networks. The need for legal regulations concerning electronic commerce has emerged with the technological developments in this regard and the acceleration of digitalization. Accordingly, Law numbered 6563 on the Regulation of Electronic Commerce ("Law") entered into force after being published in the Official Gazette Numbered 29166 and dated November 5, 2014. The Law regulates the principles and procedures regarding electronic commerce and covers commercial communication, the responsibilities of service providers and intermediary service providers, the contracts made with electronic communication tools and the obligations to provide information regarding electronic commerce and the sanctions to be applied.
In recent years, especially with the COVID-19 Pandemic, people started to meet all their daily needs on the electronic medium1, and this has led to the spread of electronic commerce platforms. Therefore, the necessity of keeping up with the current developments and updating the existing legal regulations regarding electronic commerce has emerged2. Consequently, Law Numbered 7416 on Amending the Law on the Regulation of Electronic Commerce ("Amending Law") was published in the Official Gazette dated July 7, 2022 and numbered 31889.
Before the Amending Law, there were two actors defined in the Law, namely service provider and intermediary service provider. With the Amending Law, the definitions of electronic commerce service provider and electronic commerce intermediary service provider have been included in the Law. Pursuant to the Law, service provider refers to natural or legal persons engaged in electronic commerce activities; intermediary service provider refers to natural or legal persons who provide the electronic commerce medium for the economic and commercial activities of others. With the Amending Law, the definitions of service providers and intermediary service providers in the Law have not been amended, however new actors have been included in the Law. Namely, electronic commerce service provider and electronic commerce intermediary service provider. Pursuant to the Amending Law, electronic commerce intermediary service provider is defined as an intermediary service provider that enables the execution of contracts or placing orders for the supply of goods or services of electronic commerce service providers in the electronic commerce marketplace, and electronic commerce service provider is defined as a service provider that executes a contract or receives an order for the supply of goods or services in the electronic commerce marketplace or in its own electronic commerce medium.
With the Amending Law, Additional Article 3 added to the Law and the obligations of the electronic commerce service provider have been determined. Accordingly, certain obligations of the electronic commerce service provider are listed below, however, electronic commerce service providers that obtain more than half of the total sales revenue from sales other than electronic commerce are not subject to the following obligations:
- Unless the electronic commerce service provider grants the explicit declaration of intent in writing or electronically, it cannot engage in marketing and promotion activities on online search engines by using the registered trademark, which constitutes the main element of the domain name registered in E-commerce Info Platform, of those who are not in an economic integrity with.
- The electronic commerce service provider, the net transaction
volume in a calendar year of which is over thirty billion Turkish
lira and the number of transactions excluding cancellations and
returns of which is over ten million must fulfil the following
obligations:
- In the following calendar year, it can spend up to two percent of this amount for thirty billion Turkish lira of the twelve-month average Consumer Price Index change rate applied amount of the net transaction volume for the same calendar year, and up to three per thousand of this amount for the amount above thirty billion Turkish liras. The amount calculated accordingly constitutes the total advertising budget of the electronic commerce service providers included in the net transaction volume and the electronic commerce service providers operating in the electronic commerce marketplace within their economic integrity. This budget is shared between electronic commerce service providers in amount to their contribution to the net transaction volume and can be used at a maximum of one quarter in quarterly periods of a calendar year.
- In the following calendar year, it may offer promotions, rewards, points, coupons, gift cards, and similar opportunities up to two percent for the amount of thirty billion Turkish liras of the net trading volume to which the twelve-month average Consumer Price Index rate of change for the same calendar year has been applied; and up to three per thousand for the above thirty billion Turkish liras of this amount. The amount calculated accordingly constitutes the total discount budget that can be made by the electronic commerce service provider and the persons with whom it is in economic integrity with the purchasers and electronic commerce service providers in the electronic commerce marketplace and can be used at most one fourth in the quarterly periods of a calendar year. The costs incurred on behalf of the buyer and the electronic commerce service provider, and the economic benefits provided to them are also considered within this scope. The Ministry of Trade is authorized to determine the upper limit for the use of the calculated amount by sectors and categories of goods and services.
- In addition to the obligations above, the electronic commerce
service provider the net transaction volume in a calendar year of
which is over sixty billion Turkish liras and the number of
transactions excluding cancellations and returns of which is over
ten million has the following obligations:
- In the electronic commerce marketplaces where it provides services, it cannot enable the banks and companies subject to Financial Leasing, Factoring, Financing and Savings Financing Companies Law Numbered 6361 which it has economic integrity with to carry out activities related to the services they offer, including lending transactions; except for the credit payment transactions made by credit card and other payment transactions within the scope of the Bank Cards and Credit Cards Law Numbered 5464 and dated 23/2/2006.
- In the electronic commerce marketplaces where it provides
services;
- It cannot enable activities conducted for the acceptance of electronic currencies issued by electronic money institutions that fall under the scope of the Law on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions numbered 6493 which it has economic integrity with.
- It cannot provide services outside the scope of the Law Numbered 6493 or enable the provision of these services by persons with which it is in economic integrity according to the subparagraph (h) of Article 12/2(2) of Law Numbered 6493 as "Transactions regarding instruments that can only be used at the issuer's place of business, in a limited network of service providers, or for the purchase of goods or services for a limited range of goods or services within the framework of a commercial agreement with the issuer of the payment instrument"; and prepaid instruments that can only be used in the issuer's own store network, only for the purchase of a specific group of goods or services, or only in a specific service network as a result of an agreement which are outside the scope of this Law and fifth paragraph of Article 18 of Law Numbered 6493 as "The Bank may decide to consider the transactions made with the payment instruments mentioned in this paragraph within the scope of this Law in the event that the transactions made with the payment instruments mentioned in this paragraph reach a level to be determined by the Bank in terms of total size and impact area".
- In case it provides an electronic medium for the publication of advertisements for goods or services, it may not provide the opportunity to conclude a contract or place an order for the supply of goods or services in the same medium. If the electronic service provider or persons which have economic integrity with the electronic service provider provide these services in different electronic mediums, the electronic service provider cannot provide access between these mediums or promote one other.
In the light of these amendments to the Law, the electronic commerce service providers are obliged to comply with the limits imposed on promotion, marketing, and advertising activities and in particular to determine the amount of advertising expenditure within the framework of the amounts stipulated in the Amending Law. Moreover, promotions, rewards, points, coupons, gift cards, and similar opportunities that the electronic commerce service providers may offer have also been limited with the Amending Law.
Footnotes
1. Arslan, İsmet Kahraman; Öz, Neslihan, Elektronik Ticaret Sözleşmelerine Uygulanacak Hukuk, İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi, 2020, C. 19, S. 38, s.13-31, 30.09.2020.
2. Hamamcıoğlu, Esra, Elektronik Ticaretin Hukuksal Boyutu, Kocaeli Üniversitesi Sosyal Bilimler Dergisi, 2018, Sayı: 35, s. 43-72, 01.07.2018.
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