Pursuant to the Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation”) that was published in the Official Gazette dated 4 January 2020 and numbered 30998, all natural and legal entities that deliver electronic commercial messages are obliged to register with the Centralized Commercial Message Management System (“IYS”).
IYS will come into effect on 1 September 2020. In this respect, it is stipulated that the opt-in consents of recipients are required to be transferred to IYS by the service providers until 1 June 2020. The Ministry of Commerce is entitled to extend these periods by up to 3 months if necessary. The web-site of IYS has already been established.
|» Opt-in and opt-out preferences regarding marketing communications will be transferred to a centralized system called “IYS” and kept in this system thereafter.|
|» Service providers will be able to collect opt-in and opt-out preferences via the call center, short link or short number services provided by IYS. Service providers who collect opt-in and opt-out requests through their own systems or third-party systems will be obliged to transfer these requests to IYS within 3 business days. The transfer can be done via the web site interface of IYS or technical integration.|
|» Opt-in consents that are not transferred to the IYS will be considered invalid.|
|» Prior to the delivery of marketing communications, service providers and intermediary service providers (operators, collective SMS or e-mail delivery services) will be required to check via IYS whether the recipient has provided opt-in consent to the relevant service provider.|
|» Intermediary service providers will not be able to deliver marketing communications from service providers who have not registered with IYS.|
|» Recipients will be able to lodge complaints concerning marketing communications via IYS.|
Commercial Message Delivery Registries in the Example of USA
In many judicial systems around the world, delivery of commercial messages is regulated in order to prevent uncontrolled, deceptive and/or disturbing use of commercial messages. In this respect, practices similar to the renovations introduced by the Regulation and structures similar to IYS have already been available in the USA for a long time.
The Telephone Consumer Protection Act (“TCPA”), one of the leading regulations in the USA on this subject, entered into force in 1991. This act aimed to prevent disturbance of people through automatic and pre-recorded calls. Within the scope of TCPA, persons whose rights are violated are able to claim compensation in the amount of 500 USD per call or claim material damages that may have been incurred.
The mechanism of Internal Do-Not-Call-List was established under the TCPA. Thus, companies that conduct marketing or promotion activities via phone were obligated to record the people who do not want to receive their phone calls and keep these records up to date. Afterwards, this obligation was regulated on a national level and the National Do-Not-Call Register was established.
In the years that followed, as a result of the increase in marketing activities via email, the necessity to prevent uncontrolled commercial messages surfaced. In this respect, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 entered into force in 2003. Pursuant to this regulation, the Federal Trade Commission was tasked to draft a report on establishing a Do-Not Email Registry.
Regulation of the Delivery of Commercial Messages in Turkey
Marketing communications were first regulated in detail under the Law on the Regulation of Electronic Commerce (“E-Commerce Law”). Afterwards, marketing messages were regulated in detail with the Regulation on Commercial Electronic Messages (“E-Message Regulation”). In addition, the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce contains provisions concerning the electronic messages delivered by the service providers and intermediary service providers.
Under the E-Message Regulation, commercial electronic messages are defined as “messages containing data, audio, or image, which are sent for commercial purposes and executed through electronic media by using mediums such as telephone, call centers, fax machine, automatic call machines, smart audio recording systems, electronic mail and short message service”. As can be understood from this description, the means of delivery is not significant considering the definition of a commercial electronic message; it is sufficient that the delivery is made through the electronic media and the message is sent for commercial purposes.
Commercial Electronic Massage Management System (IYS)
IYS is regulated under the Regulation amending the E-Message Regulation. The main purpose of IYS is to centralize the marketing consents (opt-in and opt-out preferences) in a single unified system. It is regulated that IYS will be established by an institution that is authorized by the Ministry of Commerce.
IYS is defined as the “system that provides for the collection of opt-in consent, exercise of the opt-out right, and management of the complaint processes”. Accordingly, IYS will be used for the collection of opt-in consents, exercise of the opt-out rights, delivery of the complaints to the authorities and management and reporting of such complaints.
Opt-In Consent and Opt-Out Notices through the IYS
Under Article 10 of the E-Commerce Law, commercial electronic messages can only be delivered if prior opt-in consent is collected from the recipient. The novelties introduced in the Regulation leads to the conclusion that opt-in systems will now be required to be built upon IYS.
Within the scope of the Regulation, it is forbidden to send commercial electronic messages to a recipient who does not have an opt-in consent registered with IYS. The opt-in consent in IYS will include (i) the affirmative declaration of the recipient for the delivery of commercial messages and (ii) electronic contact information.
Consents that are not collected through IYS will need to be registered with IYS by the service provider within three business days. The opt-in consents that are not registered with IYS within this period will be deemed invalid.
Service providers are required to transfer the opt-in consents they have collected thus far to IYS until 1 June 2020. The recipients, in turn, are obliged to check their registered opt-in consents until 1 September 2020, the date of effect of IYS.
Under Article 8 of the E-Commerce Law, it is mandatory that service providers provide the means for opting-out from future communications and comply with such opt-out preferences of recipients. Under the Regulation, the opt-out requests will be submitted through IYS as well as the opt-in consents, and the opt-out preferences of the recipients will be kept in IYS. The opt-out notices that are received outside of IYS are to be transferred to the IYS by the service provider within three business days.
The service providers are obliged to check through IYS whether the recipients have exercised their opt-out right prior to sending commercial electronic messages.
Liabilities of the Intermediary Service Providers
Intermediary service providers (e.g. operators, collective SMS service providers) are obliged to provide the technical possibilities to the service providers for compliance with their obligations under the E-Message Regulation. Thus, the intermediary service providers are obliged to align their commercial electronic message systems with IYS, and they are prohibited from delivering commercial electronic messages of the service providers that are not registered with IYS.
Moreover, the intermediary service providers are obliged to check through IYS whether the recipients have an opt-in consent before initiating the message delivery for the service providers. This means that whether the recipient has consented to receive the message will be confirmed for a second time by the intermediary service provider (the first confirmation to be done by the service provider).
Complaints for Receiving Unauthorized Commercial Messages
Under Article 14 of the E-Message Regulation that is amended by the Regulation, it is possible to convey complaints concerning unauthorized commercial electronic messages to the Ministry of Commerce through IYS, website of the Ministry of Commerce, by sending a notification to the provincial directorate of commerce located in the place of residence of the complainant, or through the e-government gateway.
Complaints filed through IYS will be first pre-examined in IYS and then be finalized by the provincial directorate of commerce.
Although the Regulation does not set out any specific sanction for not registering with IYS, as the consents collected by service providers who did not register with IYS will be invalidated, the marketing communications sent by such service providers will be deemed to be unauthorized. As per The E-Commerce Law and as of the year 2020, the following administrative fines may be imposed on the service providers or intermediary service providers:
- For sending commercial electronic messages to recipients without their prior opt-in consent or sending commercial electronic messages that are not in compliance with the opt-in consent received from the recipients, an administrative fine up to TRY 9,515 (in case multiple unauthorized messages were delivered at once, this fine may be increased up to ten times);
- For the violation of the obligations regarding the opt-out right, an administrative fine up to TRY 28,546.