NEW REGULATIONS REGARDING ELECTRONIC COMMERCE INTERMEDIARY SERVICE PROVIDERS
The Regulation on Electronic Commerce IntermediaryService
Providers and Electronic Commerce Service Providers (“Regulation”)
was published in the Official Gazette dated 29 December 2022 and numbered 32058
in which new concepts and regulations introduced by the Law on the Regulation
of Electronic Commerce (“Law”) on 07 July 2022 are specified in
detail.
With the Regulation, the procedures and principles
regarding the activities and inspections of electronic commerce intermediary
service providers (“ECISP”) and electronic commerce service
providers (“ECSP”) are determined. In the Regulation, obligations
are gradually determined according to the net transaction volumes and also
includes provisions applied to (i) all, (ii) medium
sized, (iii) large, and (iv) very large ECISP and
ECSPs as defined in the Regulation. The Regulation revokes the existing
Regulation on Service Providers and Intermediary Service Providers in
Electronic Commerce. Regulations will enter into force on 01.01.2023 unless
otherwise stated below. The new regulations regarding ECISP are as follows:
1. Obligations applicable to all ECISP
·
Removal
of illegal content:
Electronic commerce intermediary service providers are not liable for unlawful
content provided by the electronic commerce service providers regarding the
content and goods or services subject to the content. The Regulation determines
the period for electronic commerce intermediary service providers to remove the
unlawful content within 48 hours from when they become aware that such content
is illegal and notify the relevant public institutions and organizations with
its justification.
· Unfair
commercial practices: The
practices of ECSPs, for which ECISP provides intermediary services, are unfair such
as the ones that significantly disrupt its commercial activities, reduce its
ability to make a reasonable decision, or force it to take a certain decision,
causing it to become a party to a commercial relationship that it would not
normally be a party to.
·
Obligations
regarding placing an order: ECISP
and ECSPs operating in its own electronic commerce environment are obliged to
ensure that second-hand products are sold under a different category/section
from unused products.
·
Obligation
to submit and verify information:
ECSP and ECISP are obliged to keep the information specified in the Regulation
under the heading of "Contact", in a way that can be accessed
directly in their electronic commerce environment.
·
IP
infringements: The details of
the new regime related to the protection of intellectual and industrial
property rights in e-commerce are introduced by the Regulation. Accordingly,
the right holder claiming that their intellectual or industrial rights have
been infringed is entitled to file a complaint before the electronic commerce
intermediary service providers with supporting information and documents. This
complaint can be sent via an internal communication system, notary channels, or
registered email.
·
Not
offering their own brands for sale: ECISPs are prohibited (i) for selling
goods bearing the trademark of itself or the persons with whom it has economic
integrity or (ii) for which it has the right to use the trademark,
in electronic commerce marketplaces where it offers intermediary services, or
mediating the sale of these goods.
·
Intermediary
agreements: The minimum
elements of the intermediary agreement to be established in order to determine
the conditions of the commercial relationship between ECISP and ECSP are
regulated in Article 15 of the Regulation. Within the scope of the Article, in
the intermediary agreements; (i) the intermediary service offered
to ECSP, (ii) situations that require restriction, suspension or
termination of the intermediary service, (iii) the fees requested
from the sellers and in which cases these fees will differ, (iv) information
such as the parameters used in the listing of goods or services or their
recommendation to the buyer and (v) the duration of the payments
to the sellers will be included. Additional issues regulated in terms of
intermediation agreements to be made by medium sized, large and very large sized
ECISP are also regulated in the rest of the same article.
·
Establishment
of internal communication system:
The electronic commerce intermediary service provider must establish an
internal communication system to receive applications made by electronic
commerce service providers. The applications made through this system by the
electronic commerce service providers must be finalized within 15
days. This regulation will enter into force on 01.07.2023.
2. Additional obligations applied to ECISPs with a net
transaction volume of over TRY 10 billion in a calendar year (medium sized
ECISPs)
·
Electronic
Commerce License: With
the regulation, it has been determined that license applications will be made
through ETBIS every year in March. This regulation will enter into force on 01.01.2024.
·
Notification
in the change of shares: It
has been stated that the obligation to notify share changes introduced by the
law will be carried out through ETBIS.
·
Independent
audit: It makes the
authorized independent audit firm perform an audit for the previous calendar year
and sends the audit report to the Ministry of Commerce in April of each
calendar year.
· Data
usage and sharing: ECISPsmust comply with the procedures and principles determined by the Regulation
when using the data they obtain. ECISPswithin this scope; (i)
should use the data obtained from the ECISPsor the buyer only for the
purpose of providing and developing the intermediary service, (ii)
cannot use the data obtained from the electronic commerce service provider and
the buyers when they act as electronic commerce service provider or when they
compete with the electronic commerce intermediary service providers through the
electronic commerce service providers that it has in economic integrity, (iii)
should provide technical support for ECSP to carry the data determined by the
Regulation free of charge and effectively, and to provide access to these data
within the term of the intermediary agreement. This regulation will enter into
force on 01.01.2024.
3. Additional obligations applied to ECISPs with a net
transaction volume of TRY 30 billion and a number of transactions over 100,000,
excluding cancellations and refunds, in a calendar year (large ECISPs)
· Advertisement
and discount expenditure: The
amounts that can be allocated to expenditures and discounts within the scope of
"Advertising Budget" and "Discount Budget" are regulated
within the Regulation, by specifying the practices that will accept
advertisements and discounts in the implementation of the Regulation. In
general, Advertising Budget and Discount Budget should be determined in
proportion to some economic indicators such as net transaction volume.
4. Additional obligations applicable to ECISPs with a net
transaction volume of TRY 60 billion and a number of transactions at 100,000,
excluding cancellations and refunds, in a calendar year (very large ECISPs)
- The
Regulation does not envisage additional requirements for very large electronic
commerce intermediary service providers that differ from the Law.
CONCLUSION
The Regulation aims the establishment of an effective
and fair competition environment and the development of electronic commerce. In
parallel with the changes in the law, some new obligations have been envisaged
by detailing the obligations for ECISP and ECSP. It is important that ECSP and ECISP
carry out the necessary harmonization process by examining the Law and the
Regulation in detail.