LIABILITY OF INTERMEDIARY SERVICE PROVIDERS FOR SALES OF DEFECTIVE GOODS
The term of “intermediary service provider” has been defined and regulated in the Law on the Regulation of Electronic Commerce numbered 6563 (“Law”) and Regulation on the Service Providers and Intermediary Service Providers of Electronic Commerce numbered 29457 (“Regulation”).
According to the Article 2 of the Law titled as Definitions, intermediary service providers express “Natural and legal persons who provides electronic commerce platform for economic and commercial activity belonging to others.”
Pursuant to the Article 9 of the Law “Intermediary service providers are not obliged to examine the contents supplied by the natural and legal persons who use the electronic platform, and to investigate whether there is an illegal activity or situation related to this content and the goods or services subject to the content”.
As regulated in the 4th paragraph of Article 6 of the Regulation, “Intermediary service providers are not obliged to examine the contents supplied by the natural and legal persons who uses the electronic platform, and to investigate whether there is an illegal activity or situation related to this content and the goods or services subject to the content”.
Despite these clear provisions of the Law and the Regulation, when the past consumer arbitration committee and judicial decisions are examined, it is seen that the intermediary service providers are held jointly and severally liable for the defect due to various reasons such as "trust liability" and "defective service of the intermediary service provider”. However, according to the precedent decision of the Court of Cassation, the details of which are given below, the intermediary service provider does not have any liability for the defective goods.
In the concrete dispute, which is the subject of the decision that sets a precedent, the consumer has brought the dispute to the consumer arbitration committee with the claim that the product he bought from the electronic commerce platform is defective since he found a cigarette butt in the product. As a result of the reasoning of the consumer arbitration committee, a decision was adopted against the intermediary service provider and the dispute was transferred to the court of first instance.
The court of first instance has dismissed the case stating that the intermediary service providers are also severally liable with the service providers due to the trust in the platform provided by intermediary service providers. Ministry of Justice has requested reversal in favor of the administration of justice.
3rd Civil Chamber of the Court of Cassation has examined the decision numbered 2021/4000 E., 2021/11403 K. and dated 15.11.2021 (“Decision”) and reversed the Decision in favor of the administration of justice by emphasizing the following:
- The subject of the lawsuit is that the parties of the distance sales contract are the relevant consumer and the enterprise that sells on the electronic commerce site,
- The plaintiff company is a third party, which is the intermediary service provider that enables electronic commerce on the internet,
- In accordance with the relevant articles of the Law and the Regulation, intermediary service providers are not obliged to control the content provided by the people using the electronic environment in which they provide services,
- And finally, it has been decided that the plaintiff intermediary service provider does not have any liability arising from the defectiveness of the goods.
As it can be understood from the decision, it is not possible to hold the intermediary service providers liable for the content provided by the service providers using the electronic environment they serve, and for the defects related to the goods and services subject to these contents.
As a current development; the "Law on Amending the Law on the Regulation of Electronic Commerce" dated 01.07.2022 and numbered 31889 is regulated the liability of the intermediary service provider which will be effective as of the date 01.01.2023. Article 9 of the Law is as follows; “Unless there is a contrary provision in any other laws, the intermediary service provider is not responsible for the unlawful matters related to the content offered by the service provider and the goods or services subject to the content”.
Although the limits of the liability of the intermediary service provider have been expanded in comparison with the previous article, the intermediary service provider shall not be responsible for the defective goods unless a separate liability is imposed on the intermediary service provider with another article.