The Law on Electronic Commerce (“the Law”) which has been pending for approval by the Turkish Parliament for the past 3 years has finally been passed on October 23, 2014. However, the Law will enter into force as of May 1, 2015.
The aim of the Law is to harmonize the Turkish ecommerce legislation with the Directive 2000/31/EC of the European Parliament and of the Council on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market (“Directive on Electronic Commerce”).
The Law regulates the procedures and principles on ecommerce. It aims to create a more secure, transparent and accessible e-commerce environment to extend the use of e-commerce in Turkey. The implementation of the Law will be provided by secondary legislations prepared by the Ministry of Customs and Trade.
The Law provides that prior to executing an electronic agreement, the service provider must provide the buyer with detailed information regarding the terms of the electronic agreement, including but not limited to; easy access to up-to-date introductory information, technical steps necessary for formation of an electronic agreement, and information on whether the agreement will be stored by the service provider after the formation of the electronic agreement and whether the buyer will have access to the agreement and for how long such access shall last.
Pursuant to Article 4 of the Law, before the buyer’s payment details are submitted, service providers shall have to ensure that the buyer sees all of the terms of the agreement clearly, including but not limited to the total purchase price with respect to orders placed via electronic media.
The service provider shall also immediately confirm through electronic communication devices that the buyer’s order has been received.
Another obligation of service providers under the Law is that before the order is placed, the service provider shall provide the buyer with appropriate, efficient and accessible technical tools so that the buyer can detect and correct any data which has been entered incorrectly.
In case parties to an e-commerce agreement are not consumers by virtue of Turkish law, they can determine to act contrary to the abovementioned obligations.
However, agreements made through e-mail or similar personal communication devices are exempted from these principles on orders placed through electronic communication devices.
In case of commercial communications, the Law provides that adequate information which clearly procures the commercial communication and the identity of the real person or legal entity that the commercial communication was made on behalf of shall be provided. Moreover, any trade communications promoting discounts, gifts or promotional competitions or games must clearly express its purpose, and any information regarding the participation to such games or competitions must be comprehensive and easy to access.
According to the Law, sending commercial electronic messages is subject to the approval of the receiver. On the other hand, it is worth noting that commercial electronic messages can be sent to merchants and tradesmen without their prior approval.
Service providers and intermediary service providers are liable for the protection and security of personal information acquired within the scope of the Law. Additionally, service providers and intermediary service providers cannot use the aforementioned personal information for any other purpose and cannot disclose such information to third parties.
The Law provides specific punitive measures for wrongful acts against the provisions of the Law. However, the Law fails to provide any measures for any failure of protection of personal information. Although implementation of the Law will be provided by secondary legislations, failure to address such a vital issue is a setback of the Law.