THE CONSTITUTIONAL COURT DECISION HAS REDEFINED THE LIABILITY OF INTERMEDIARY SERVICE PROVIDERS IN ELECTRONIC COMMERCE IN TERMS OF CONSUMER RIGHTS
With its decision dated 12.02.2026 and numbered 2024/187 E. and 2026/42 K. (“Decision”), the Constitutional Court (“CC”) addressed, at the constitutional level, the structural problem arising from legislative regulations concerning the liability of electronic commerce intermediary service providers towards consumers. With the decision published in the Official Gazette dated 02.06.2026 and numbered 33268, the phrase “…and Article 11…” contained in subparagraph (d) of paragraph (6) added to Article 48 of the Law No. 6502 on the Protection of Consumers (“CPL”) by Article 7 of Law No. 7392 dated 24.03.2022, and paragraph (1) of Article 9 of the Law No. 6563 on the Regulation of Electronic Commerce (“ECL”), whose title and content were amended by Article 3 of Law No. 7416 dated 01.07.2022, have been annulled by majority vote on the grounds that they are contrary to Articles 5, 35, and 172 of the Constitution with respect to consumer contracts.
Within the scope of the Decision, it has been determined that the exemption from liability granted to intermediary service providers under these regulations leaves consumers unprotected in cases where the seller or provider cannot be reached, and is incompatible with the State’s obligations regarding the protection of property rights and consumers.
Subject of the Application
The objection application was made by the 3rd Civil Chamber of the Ankara Regional Court of Appeal within the scope of the appellate review of a lawsuit filed for the compensation of non-pecuniary damages arising from a defective good purchased through electronic commerce. Under the system in force prior to the annulment decision, pursuant to Article 48/6-d of the CPL, the intermediary service provider was exempt from joint liability concerning the optional rights granted to consumers under Article 11 of the CPL in cases where the goods were defective, even where it collected the payment on behalf of the seller. On the other hand, Article 9/1 of the ECL stipulated that the intermediary service provider would under no circumstances be liable for unlawful aspects related to the content provided by the service provider and the goods or services subject to such content.
This framework deprived consumers of any legal remedy, particularly in cases where the seller or provider could not be reached or the responsible party could not be identified. The referring court argued that these rules were incompatible with the State’s obligations to protect consumers, that a consumer who makes purchases based on trust in the electronic marketplace remains entirely unprotected if unable to reach the seller, that granting non-liability to intermediary service providers effectively prevents consumers from accessing the courts, and that it creates inequality between small-scale sellers or providers and platforms; accordingly, it applied for their annulment pursuant to Articles 2, 10, 13, 36, and 172 of the Constitution.
Assessment of the Constitutional Court
The Court determined that the contested rules should primarily be examined within the framework of the right to property guaranteed under Article 35 of the Constitution. It was acknowledged that the right to property also encompasses receivables without physical existence; therefore, the loss in the consumer’s assets arising from a defective good received in return for payment falls within the scope of this right.
According to the Constitutional Court, the effective protection of the right to property does not merely require the State to refrain from interference; it also constitutes an integral part of this obligation to implement protective and corrective mechanisms that enable individuals to genuinely benefit from this right. Within the framework of the State’s positive obligations under Articles 5 and 172 of the Constitution, it is mandatory to ensure the existence of effective and accessible legal remedies that allow consumers to obtain compensation for damages they have suffered.
The position of intermediary service providers was also specifically examined in the Decision. The Court stated that such providers do not, in all cases, perform merely a technical and passive function; rather, where they have knowledge of the goods or services subject to commerce or possess control over such goods or services, they acquire the status of an active intermediary service provider. Indeed, in comparative law, it is also accepted that the “safe harbor” exemption is specific only to technical, automatic, and passive platform activities. However, the contested rules exempt all intermediary service providers from liability under all circumstances without regard to this distinction, thereby disregarding the factual differences between active and passive intermediaries.
In conclusion, the Constitutional Court held that the contested rules disrupt the balance of interests between intermediary service providers and consumers to the detriment of consumers, and that this imbalance is incompatible with the State’s positive obligations arising from the Constitution. For these reasons, the phrase “…and Article 11…” in Article 48/6-d of the CPL and Article 9/1 of the ECL have been annulled by majority vote on the grounds that they are contrary to Articles 5, 35, and 172 of the Constitution with respect to consumer contracts. Since the legal vacuum that would arise from the annulment provisions would harm the public interest, the effective date of these provisions has been set as nine months from the date of publication of the decision in the Official Gazette.
Impact of the Decision on Practice
With the entry into force of the Decision, the legal obstacle preventing consumers from directly applying to intermediary service providers in cases where the seller or provider cannot be reached in relation to defective goods in distance sales conducted through electronic commerce platforms will be eliminated. In transactions where the intermediary service provider collects payment on behalf of the seller or assumes the role of an active intermediary, joint liability can now be asserted as a viable claim. On the other hand, the nine-month deferred enforcement period provides the legislature with the opportunity to regulate the obligations of intermediary service providers in a clear and foreseeable manner.
Conclusion
This decision of the Constitutional Court demonstrates that a growing issue within the digital platform economy has finally been addressed within a constitutional framework. The annulled provisions had effectively left consumers unprotected by exempting electronic commerce marketplaces from liability even in the face of defective goods and unlawful content. The Constitutional Court found this situation unsustainable and delineated the constitutional limits of the “safe harbor” exemption, including those covering active intermediaries. The legislature is required to enact a regulation that is compatible with and implementable within the limits set by the Decision within the nine-month period; otherwise, the uncertainty created by the annulment gap will continue to adversely affect both consumers and market actors.