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In modern life, in which working life has become more intense and the time people can spend on themselves has narrowed, we are able to devote less time to shopping, as to everything else, than we used to. As a result, we no longer go to physical stores and choose the product we are going to buy from among a range of varieties; instead, we shop with a single click from our computer or telephone while sitting or working at home or in the office. Today we can easily reach almost everything we need through internet platforms. In the “e-commerce” method, which has replaced classical trade, the purchase of products by buyers without seeing or touching them has brought with it security problems and, for that reason, new rules in place of those governing classical trade. In this article, we provide information on the Turkish judiciary's approach to e-commerce, together with the rationale of the provisions concerned, and on the application of the rules governing e-commerce law.
A Brief Assessment of E-Commerce Law in Light of Court of Cassation (Yargıtay) Decisions
Introduction
With the pandemic period, the use of e-commerce has increased rapidly in Türkiye, as in the rest of the world, and has begun to replace classical methods of sale. The reason underlying this change is that the e-commerce method is more practical than the classical methods. With the spread of the e-commerce method, the need has arisen to regulate this area of law by means of statutory texts.
In this article, we will discuss the e-commerce regulations in Turkish law and the precedent-setting decisions of the Court of Cassation (Yargıtay).
Brief Information on E-Commerce Law
Before examining the subject in the context of Court of Cassation (Yargıtay) decisions, it will be more appropriate first to provide brief information on the statutory regulations. The fact that internet technologies took their present form very late all over the world, and also in Türkiye, has meant that the regulations on e-commerce law are also very recent. In parallel, the e-commerce method of sale became widespread essentially after the pandemic period. We can therefore say that e-commerce law is still developing all over the world and, naturally, in Türkiye as well, and has not yet reached a stage of full maturity.
The first comprehensive code regulating e-commerce law entered Turkish legislation in 2014 with the Law on the Regulation of Electronic Commerce. Article 1 of the Law, titled “Purpose and Scope”, states the purpose of the Law as “regulating the principles and procedures relating to electronic commerce”. The Regulation on Electronic Commerce Intermediary Providers and Electronic Commerce Service Providers, issued on the basis of this Law, likewise contains important rules relating to e-commerce law.
In addition to obligations relating to electronic commerce, the Law also contains criminal sanctions. Indeed, Article 12 of the Law, titled “Penal Provisions”, sets out in detail the penalties to be faced in the event of conduct contrary to the obligations.
In the remainder of this article, we will explain how the obligations and criminal sanctions set out in the Law are reflected in the practice of the Court of Cassation (Yargıtay), also making use of precedent case law.
Obligation to Provide Information
Article 3 of the Law, titled “Obligation to Provide Information”, provides as follows:
“ARTICLE 3 – (1) Before a contract is concluded by means of electronic communication tools, the service provider shall provide:
a) Its identification information, in a manner that is easily accessible to buyers and kept up to date,
b) Information on the technical steps to be followed in order for the contract to be concluded,
c) Information on whether the text of the contract will be stored by the service provider after the contract has been concluded, whether the buyer will be able to access the contract at a later date, and for how long such access will be provided,
ç) Information on the technical means for clearly and comprehensibly identifying and correcting errors in data entry,
d) Information on the privacy rules applied and, if any, on alternative dispute resolution mechanisms.”
This is the wording of the provision. Pursuant to this mandatory provision, the service provider is obliged to show the information listed, subparagraph by subparagraph, in the Article to the other party to the contract, that is, the buyer, before the contract is concluded. The reason for this obligation is explained as follows in the rationale of the Article:
“Pursuant to the first paragraph, the steps necessary for the conclusion of the contract must be clarified without fail. These must be presented to the buyer by the service provider. In this way, the buyer will be able to know in advance which steps will be followed. Likewise, it must also be clearly stated whether the text of the contract will be stored by the service provider. This is required by the duty to inform that exists at the outset. Accordingly, even before entering into the contractual relationship, the buyer will know in advance the process through which the contract will be carried out and will decide how to form his or her will as to whether to enter into the contractual relationship.”
Articles 5 and 6 of the Regulation issued on the basis of the Law also explain in detail the scope of the obligation to provide information of electronic commerce intermediaries and service providers. In its decision of 14.12.2018 (Court of Cassation 19th Civil Chamber, 2017/5834 E., 2018/12148 K.), the Court of Cassation held: “Paragraph 3 of Article 6 of the said Regulation provides that ‘The intermediary service provider shall ensure that, before the service provider commences electronic commerce activity, it fulfils its obligations under the fourth and fifth paragraphs of Article 5 ...’; and the fourth and fifth paragraphs of Article 5 of the Regulation, to which reference is made, impose an obligation on natural or legal person service providers engaged in electronic commerce activity, depending on whether or not they are merchants or tradesmen, to include certain information concerning themselves in full in the designated areas.” In this way, the Court of Cassation (Yargıtay) has also clearly ruled that the relevant provisions are mandatory and must be complied with.
When the statutory provision, its rationale and the precedent case law are assessed together, it can be seen that an attempt has been made to prevent the adverse consequences of the buyer's entering personal data on the platform in the e-commerce method, unlike the “pay the money, take the product” system of the classical method of sale. Indeed, the seller is obliged to inform the buyer of what the buyer will be faced with by presenting the buyer, before the conclusion of the contract, with the information specified in the provision. Bearing in mind that the general spirit of the Law and of the practice of the Court of Cassation (Yargıtay) is the principle of consumer protection, it can be said that the statutory provision is a regulation consistent with its purpose.
Orders in the Electronic Commerce Method
In sales made by the electronic commerce method, buyers do not physically see the products they wish to purchase, and they most of the time pay for the products they purchase remotely by credit card through a virtual POS. There are many risk factors in purchases made in this way. For example, the buyer may be charged more than the amount payable, or after payment has been made the order may not be prepared for dispatch to the buyer. All these risk factors may be brought about by the seller in bad faith, or may arise from purely technical problems. In order to protect the buyer and to prevent such risks, the Law has provided for certain measures in its Article 4, titled “Order”.
ARTICLE 4 – (1) The following principles apply to orders placed by means of electronic communication tools:
a) At the stage of confirming the order and before the payment details are entered, the service provider shall ensure that the terms of the contract, including the total price to be paid, are clearly visible to the buyer.
b) The service provider shall confirm without delay, by means of electronic communication tools, that it has received the buyer's order.
c) The order and the confirmation that the order has been received shall be deemed to have taken place at the moment when the parties are able to access those declarations.
Subparagraph 1/a of the Article essentially aims to prevent the buyer from being charged an amount greater than the price promised by the seller and anticipated by the buyer. Indeed, the provision lays down as a requirement that the service provider clearly show the total price to be paid and the terms of the contract before the buyer enters payment details. The rationale of the Article expresses this requirement as follows:
“Pursuant to the first paragraph, where the buyer places an order by electronic means, the buyer must know the total price to be paid before the order is placed and before the payment details. Merely knowing the total price to be paid is also not sufficient; the buyer must be able to see and re-examine the other terms of the contract as well. In this case, the buyer will be able to fully grasp, once more, the nature of the order placed and the content of the contract being signed.”
As is also expressly stated in the rationale of the Article, the purpose of the provision is to prompt the buyer to think once more about whether he or she really wishes to place the order in accordance with the terms of the contract. When the Law is examined systematically, if the obligations that we have explained in detail under the heading “Obligation to Provide Information” have also been fulfilled, it can be discussed whether the buyer's intention to purchase is serious. In short, Articles 3 and 4 of the Law must be applied together and in full, and the buyer must make a decision having all the information relating to the contract.
The rationale of subparagraph 1/b of the provision is explained as follows:
“After the order has been placed, a confirmation that the order has been received must be sent to the buyer. In this way, the buyer should understand that the contract he or she has made is valid and that a serious intention has also been formed on the part of the other party.”
What is to be understood from this rationale is that the reason for the existence of the provision is to dispel, for the buyer, any doubts as to whether the contract has been seriously concluded. For this purpose, the provision imposes on the service provider an obligation to give feedback, after the order has been placed by the buyer, that the order has been placed, that is, that it is aware of it.
Obligations of Intermediary Service Providers
An intermediary service provider is defined in subparagraph (d) of Article 2 of the Law, titled “Definitions”, as “natural and legal persons who provide the electronic commerce environment for the conduct of economic and commercial activities belonging to others”. We can readily say that intermediary service providers are the internet platforms that bring sellers and buyers together. We would like to stress that these platforms are not in the position of seller. The obligations of these service providers are set out in Article 9 of the Law as follows:
ARTICLE 9 – (1) Intermediary service providers are not obliged to monitor the content provided by natural and legal persons using the electronic environment in which they provide services, or to investigate whether there is any unlawful activity or situation relating to such content or to the goods or services that are the subject of the content.
Buyers who shop on e-commerce platforms operated by an intermediary service provider, being of the opinion that the intermediary service provider is directly responsible for the damage they suffer, hold the intermediary service provider liable for their loss. However, the provision clearly mitigates the liability of the intermediary service provider and in most cases leads to the conclusion that it is the seller, not the provider, who is liable. Considering that many sellers sell on these platforms that bring buyers and sellers together, the platform cannot be expected to monitor the content of each seller's products, and expecting this would lead to results contrary to equity. From this point of view, it can clearly be said that the provision is an appropriate regulation.
Indeed, in its decision of 15.11.2021 (Court of Cassation 3rd Civil Chamber, 2021/4000 E., 2021/11403 K.), the Court of Cassation held, in summary: “Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce dated 6.08.2015, under the heading ‘Obligations of the intermediary service provider’, contains the following provision: …(4) An intermediary service provider is not obliged to monitor the content provided by natural and legal persons using the electronic environment in which it provides services, or to investigate whether there is any unlawful activity or situation relating to such content or to the goods or services that are the subject of the content.
“In the specific case, when the legislative provisions explained above are assessed together, it is understood that the claimant company, which enables electronic commerce over the internet network, is in the position of an intermediary service provider; that, according to the preliminary information form of the distance sales contract between the parties, the seller party is ‘... Pastry Shop’; and that, in this situation, the claimant intermediary service provider is not obliged to monitor the content provided by natural and legal persons using the electronic environment in which it provides services, or to investigate whether there is any unlawful activity or situation relating to such content or to the goods or services that are the subject of the content.
“That being so, the court should have rendered a judgment accepting the claim, taking into account that, under Article 9 of Law No. 6563 and Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce, the claimant, being an intermediary service provider, bears no liability arising from the defectiveness of the goods; since it is not considered correct that, on the basis of an erroneous assessment, the claim was dismissed, the Ministry of Justice's request for appeal in the interest of the law in this respect must be accepted.” In so deciding, the Court concluded that it is not the intermediary service provider but the person in the position of seller in the distance sales contract who is liable for damage relating to the goods sold. With this decision, a full stop was put to the differing practices that had previously existed, particularly before the Consumer Arbitration Committees, and the High Court also ruled that the intermediary service provider is not responsible for the content of the products offered for sale on the platform.
Commercial Electronic Messages
For a long time, the constant sending of commercial messages by companies to individuals' personal telephones was, rightly, the subject of a great many complaints. So much so that the legislature felt the need to regulate commercial messages. Accordingly, the conditions relating to commercial messages were set out in Article 6 of the Law on the Regulation of Electronic Commerce.
Condition for sending commercial electronic messages
ARTICLE 6 – (1) Commercial electronic messages may be sent to recipients only on condition that their prior approval has been obtained. This approval may be obtained in writing or by any electronic communication means. Where the recipient has provided his or her contact details for the purpose of being contacted, no separate approval is required for commercial electronic messages relating to changes to, use of and maintenance of the goods or services supplied.
With this provision, the activity, constantly experienced in the past, of sending commercial messages to individuals' personal telephone numbers without obtaining any approval also came to an end. It must be stressed, in relation to commercial messages that infringe the right not to be disturbed, which is the most natural right in people's private lives, that the provision did not prohibit commercial messages but only made them subject to the condition of obtaining approval.
Indeed, in its judgment (Istanbul Regional Court of Appeal 3rd Civil Chamber, 2024/8 E., 2024/353 K.), the court held: “Appeal Application: The judgment was appealed by the claimant's counsel… Stating that, pursuant to Article 6 of Law No. 6563 on the Regulation of Electronic Commerce, prior approval must be obtained for electronic commercial messages to be sent to recipients, in other words, that this provision does not prohibit the sending of commercial messages but only subjects it to an approval mechanism…, counsel requested that the decision be set aside… DECISION: … 2- As of the date of entry into force of the Law on the Regulation of Electronic Commerce and the Regulations on Commercial Communication and Commercial Electronic Messages, the provisions of which are set out above, the sending of SMS or e-mails by merchants to private persons is not entirely prohibited, but is made subject to the recipient's approval. For the reasons explained above; A- The claimant's appeal request is accepted and, pursuant to Article 353/1-b-2 of the HMK, the decision is set aside and, rendering a new judgment on the merits; 1- the claim is ACCEPTED,…”
The rules to which commercial electronic messages are subject are regulated in detail in the Regulation on Commercial Communication and Commercial Electronic Messages, issued on the basis of this Law. With the provision in Article 5 of the Regulation, which states “For commercial electronic messages that the service provider sends to recipients' electronic communication addresses in order to promote its goods and services, to advertise its business, or to increase its recognition through content such as congratulations and good wishes, prior approval is obtained either by the service provider itself (Added phrase: Official Gazette 4/1/2020-30998)(3) or through the Commercial Electronic Message Management System (İYS)”, the approval requirement sought in the Law is repeated.
Conclusion
With e-commerce having become very widespread in recent years, Türkiye has also introduced regulations on this subject. As we have explained in detail in our article, the main purpose of these regulations is to protect the interests of buyers. Indeed, the “Principle of Protection of the Weaker Party”, one of the general principles of law, also requires this.
However, while the buyer's interest is protected, obligations contrary to equity must not be imposed on the intermediary service provider either. The Law, taking this point into account, has made the necessary provisions.
In our modern world, which is accelerating every day, in which individuality is coming to the fore, and in which classical methods of sale may one day perhaps be abandoned altogether, it is clear that our need for new legal regulations on e-commerce law will increase. We have tried to describe briefly the most prominent of the regulations in Turkish legislation on e-commerce law, which is still developing and being learned today, the legislature's intention in making these regulations, and the practice of the Court of Cassation (Yargıtay). Happy reading.
Trainee Attorney Utku Mehmet YETİŞ
