Turkey: New Era For E-Marketplaces And E-Sellers/Providers In Turkey (20 Jan 2023)

(i) Significant Amendments to the Law on Electronic Commerce and (ii) New Regulation on E-Marketplace Operators and have entered into force

Amendments to the Law on Electronic Commerce ("Amendments"), and New Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers ("Regulation") which impose significant obligations on operators ("Marketplace Operator") of e-marketplaces ("Marketplace") and e-commerce sellers/providers ("Seller/Provider"), have entered into force as of 1 January 2023¹.

Non-compliance with these obligations is subject to administrative monetary fines. These fines vary between TRY 10 thousand and TRY 40 million, and also certain fines are calculated on a percentage basis, varying between 0.05% and 10% of the net sales amount of the preceding year.

Although some of the provisions of the Regulation is the same with the previous regulation, we have also indicated them to give a comprehensive idea about the requirements under Turkish electronic commerce legislation.

1. Obligations applicable to Marketplace Operators

1. General Obligations
   A Marketplace Operator shall:
   
   • provide its identification information on its Marketplace's homepage,
   • allocate an appropriate area and provide necessary technical facilities to the Seller/Provider to include the identification information of the Seller/Provider on the Marketplace,
   • establish an internal communication system to provide easy and free communication with the Seller/Provider and submissions from the Seller/Provider shall be received through this system²,
   • designate at least one natural or legal person as a point of contact to communicate with public institutions and bodies and notify the Ministry of Commerce ("Ministry") of the contact details of this person via Electronic Commerce Information System ("ETBIS"),
   • provide certain information under its transaction guide (as detailed in the Regulation),
   • comply with rules on receiving, confirming and delivering orders (as detailed in the Regulation),
   • notify the buyer without delay from the receipt of the order via the Marketplace and by at least one of the means of communication as follows: e-mail, text message or phone call,
   • ensure necessary integration with the Seller/Provider for the simultaneous transmission of order information to the Seller/Provider and keep the stock information up to date,
   • remove unlawful content submitted by the Seller/Provider and notify the Seller/Provider and relevant public institutions and organizations without delay and at the latest within 48 hours. As for intellectual property rights, if the Marketplace Operator receives a complaint from the intellectual right owner supported by relevant information and documents, the Marketplace Operator shall remove the product subject to the complaint and notify the relevant parties without delay and at the latest within 48 hours,
   • retain for 10 years the information and documents relating to the services and transactions falling within the scope of the Electronic Commerce Law,
   • not restrict, suspend, or terminate its intermediary services, except for the objective criteria included in the intermediation agreement. In the event of a situation requiring the restriction, suspension or termination of the agreement, Marketplace Operator shall give at least 3 business days to the Seller/Provider to submit its explanations. If the explanations of the Seller/Provider are insufficient, or no explanation is provided, Marketplace Operator may restrict, suspend, or terminate the intermediary services. Intermediary services may also be restricted, suspended or terminated immediately for the reasons arising from the legislation or in cases involving public order, nondelayable cases or fraud, data breach or other cyber security risks,
   • obtain an e-commerce license (subject to an annual fee) as of 1 January 2025 if it exceeds certain thresholds,
   • not offer to sale or act as an intermediary for the sale of products that are labeled with the trademark(s) for which intellectual property rights or right to use belong to itself or to the persons with whom it has economic integrity³,
   • enable Sellers/Providers to provide the information required under the Tax Procedure Law such as information required to be on receipts/invoices, on its Marketplace,
   • not use the registered trademarks of any person (except for the persons with whom they have an economic integrity), which constitute the main element of their websites' domain names registered at ETBIS, in online search engines for marketing and promotion activities without obtaining the prior approval of such persons,
   • verify the identification information of the Seller/Provider with documents obtained from the Seller/Provider or via accessible electronic systems of relevant institutions and keeping this information up to date,
   • shall not carry out unfair commercial practices, examples which are as follows:
     • failure to transfer the payment to the Seller/Provider in full and within 5 business days from the date when the amount is at the disposal of the Marketplace Operator and the order is delivered to the buyer (certain exemptions exists for the Marketplace Operator's blocked accounts in banks and setoff of Marketplace Operator's receivables from Sellers/Providers).
     • obliging the Seller/Provider to carry out sales campaigns, including unilateral modification of the selling price by the Marketplace Operator.
     • failure to determine the terms of the commercial relationship with the Seller/Provider by a written or electronic intermediation agreement, or failure to ensure that this agreement is clear, understandable, and easily accessible by the Seller/Provider, and failure to comply with the requirements with respect to the intermediation agreement despite the notice received from the Ministry.
     • making retroactive or unilateral amendments or including a provision to the intermediation agreement to the disadvantage of the Seller/Provider.
     • receiving remuneration from the Seller/Provider without providing any services or stating the type/price/rate of the services in the intermediation agreement.
     • lowering the Seller/Provider's position in the ranking or recommendation system or restricting, suspending, or terminating the services provided to the Seller/Provider without any objective criteria included in the intermediation agreement in this regard or on the ground that a complaint has been filed to public institutions or judicial authorities.
     • determining the right of withdrawal periods longer than those specified under the Law on the Protection of the Consumer, without the prior approval of the Seller/Provider.
     • providing untrue or misleading explanations and notifications to the Seller/Provider about its products and activities.

Also, the intermediation agreements between a Marketplace Operator and a Seller/Provider shall be amended in accordance with the Amendments and the Regulation.⁴

Click here to continue reading...

Footnotes

1. The exceptions are indicated in the following footnotes.

2. Transactions envisaged to be made via the internal communication system can be made by other technical means until 1 July 2023.

3. This prohibition does not apply to Marketplace Operators who derive more than half of their total sales revenue from offline sales. The effective date of this article is 1 January 2023 while the deadline for compliance with this obligation is 1 January 2024.

4. The effective date of this provision is 1 January 2023. However, agreements made before 1 January 2023 should be amended within 6 months from this date.

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.