Is There a Legal Regulation on This Subject?
The principles to be followed for sending commercial electronic messages (SMS, e-mail, call) to the recipients are regulated by Law No. 6563 on the Regulation of Electronic Commerce (“Law”) and the Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation”).
According to the Law, it is regulated that the party who is selling a product/service as a service provider may only send commercial electronic messages to the electronic communication addresses of the buyers with the prior consent of the buyers, in order to promote their goods and services, to market them, to promote their business or to increase their recognition, with content such as congratulations and wishes.
It has been made mandatory for natural persons or legal entities who wish to send commercial electronic messages, to register at the Electronic Communication Management System (“System”) and to upload the permissions which are obtained from the persons to receive commercial messages
What Falls Under the Scope of Commercial Electronic Message?
Messages with data, audio and video content sent for commercial purposes and carried out in electronic environment using means such as telephone, call centers, fax, automatic dialing machines, smart voice recorder systems, e-mail, short message service; and messages sent to promote, market the goods, services or business of the service provider, or messages sent to the electronic communication addresses of the recipients in order to increase their recognition with content such as congratulations and wishes, even without any explicit promotional and/or promotional information are defined as “Commercial Electronic Message”.
On Which Occasions, Consumer Consent is Required?
In accordance with the relevant legislation, “service provider” refers to natural persons or legal entities engaged in electronic commerce activities. Therefore, within the framework of the law, natural persons and legal entities who provide commercial communication using tools such as calls, messages, e-mail are defined as “service providers”.
In case service providers send commercial electronic messages to buyers in order to promote their businesses and market their products or services, they must first obtain approval from the buyers, upload these approvals to the System and follow them up on the System. Congratulatory and celebratory messages to be sent to the recipients are also included in the scope of “commercial electronic messages”, and it is necessary to obtain the approval of the recipients in order to send them as well.
What Does a Message Management System (“System”) Do?
This System is an application introduced to regulate the transmission of natural persons/legal entities who want to send commercial electronic messages, and to prevent delivery of messages without the approval of the receiver.
Service providers who register with the System and upload the approvals can track and manage these approvals through this system. A recipient who has priorly given consent may withdraw his consent, or the recipient who is requested to give consent for sending a new message may refuse to receive commercial electronic messages. These approvals and rejection notifications can be tracked by the service providers over the System.
It has been made much easier to follow the process with the services provided through the system, due to the obligations of the legislation, such as the necessity of sending refusal notifications through the same communication channel as the commercial electronic message was sent, and not sending commercial electronic messages to recipients if they withdraw their message approvals
Which Electronic Messages Can E-Commerce Sites Send Without Consumer Consent?
In the Law and Regulation, certain exceptional cases are regulated in terms of obtaining approval from the recipients for sending commercial electronic messages. In the presence of one of the following situations, it is not necessary to obtain approval from the recipients. These situations are:
- In case the recipient has given his contact information for the purpose of being contacted for commercial electronic messages regarding the change, use and maintenance of the goods or services provided,
- In case of sending messages containing notifications regarding ongoing subscription, membership status and collection, information update, purchase and delivery or similar situations,
- In case the service provider is obliged to send commercial electronic messages to the recipients due to its obligation to provide information.
- In online shopping, during the confirmation of the receipt of the buyer’s order by electronic communication tools.
When commercial electronic messages need to be sent to consumers due to one or more of the situations we have mentioned above, it will no longer be necessary to obtain prior approval from the recipients. Commercial electronic messages can be freely sent in the exceptional cases listed above, even when the service providers do not have a System registration or when sending messages to recipients that did not give a consent.
In case commercial electronic messages for marketing, advertising, promotion or promotion purposes are to be sent to the recipients, except for the cases that are mandatory and exempted by the relevant legislation, in order to avoid unpleasant situations such as a legal sanction or consumer complaint, we strongly recommend that you register with the system and upload to the system the permissions obtained from the people to whom commercial messages will be sent to.
Except for the exceptional cases mentioned above, if commercial electronic messages are sent to consumers without their approval, an administrative fine of between one thousand and five thousand Turkish Liras may be encountered. It must also be remembered that if this situation occurs in the form of sending a message to more than one person at once, the prescribed administrative fine can be increased up to ten times.
As you can see from our detailed explanations above, it should not be forgotten that, apart from the exceptions mentioned above, e-commerce sites are obliged to obtain permission from the recipients before sending any commercial electronic message, including holiday greetings and birthday celebrations, and that there will be serious sanctions for not complying with the rule. In addition, it is mandatory for all e-commerce sites that send commercial electronic messages to register with the System, in order for the recipients of commercial electronic messages to be able to control and manage who they allow and whose messages they reject.
Ezginaz Çalışır, Attorney At Law