AMENDMENTS TO REGULATION ON COMMERCIAL COMMUNICATION AND COMMERCIAL ELECTRONIC MESSAGES
ABSTRACT
Pursuant to the Regulation on the Amendment of the Regulation on Commercial Communication and Commercial Electronic Messages ”which entered into force with the Official Gazette dated January 4, 2020, some major changes have been made on the ” Regulation on Commercial Communication and Commercial Electronic Messages” which entered into force with the official gazette dated July 15, 2015 and numbered 29417 ”. With the new Regulation it has been stated that, real / legal persons wishing to send Commercial Electronic Messages are obliged to register in the Message Management System (“İYS”). In addition, with the transition to the new system, the recipients’ approvals will be registered in the CMS, and the sender will have to register the approvals obtained by itself from other channels to the system. Although the İYS system has not yet been put into use, the approvals already obtained and approvals to be obtained until the system is active must be transferred to the system by 1 June 2020 at the latest.
EXPLANATIONS
In conjunction with the Regulation on Commercial Communication and Commercial Electronic Messages Regulation that entered into force with The Official Gazette dated 15.07.2015, numbered 29417; it is stated that the Service provider is obliged to get prior approval in order to promote his goods and services, market, promote his business or for commercial electronic messages with contents such as congratulation and wish, sent to recipients e-mail addresses in order to increase his recognition. Hereby Regulation contains important regulations such as nature of hereby approval text, through which channels it will be delivered to the recipients, the issues that recipient shall be informed about while receiving approval and electronic messages sent shall be in line with received approval.
What Changed ?
In this context, the first version of this Regulations Article 5 states that in order to send an electronic message, approval must be taken by the sending service provider himself and in Article 7 of the same regulation it is stated that the approval mentioned in the article could be obtained in writing or in electronic media by all kinds of communication tools. With the “Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages” which came into force with Official Gazette numbered 30998 dated 4 January 2020 that constitutes the main topic of this Article, some profound changes were made in the Regulation, and it became obligatory for all real and legal persons who wishes to send electronic messages to be registered in the Commercial Electronic Message Management System (İYS) and also the received approval obtained from the recipient to be registered to the same system.
At this point, it is important to state that although the method of obtaining approval by the service provider itself is still valid, the burden of proof of the approvals received in this way will still be on the service provider. In addition, such approvals must be registered in İYS within three working days. As a matter of fact, approvals that are not registered İYS will be deemed invalid.
In other words, in order to send a commercial electronic message to the person concerned, the sender must sign on to the İYS, and the recipient to whom the electronic message is intended to be sent shall have to have registered approval for the transmission in this system. With the amendment of Regulation, making a rejection notification via İYS system regarding the approval sent by recipient will be possible and service provider shall be obliged to notify İYS about rejection notification directly made to him within 3 working days like in the approval process.
Evaluation In Terms of Data Protection Law
Besides, with the last amendment obligations have been brought to service providers in terms of Data Protection Law numbered 6698 (“KVKK”). The new Regulation includes amendments that will effect processing of personal data and naturally, data inventory process. It is worth noting that in the first Regulation, service provider and/or intermediary service provider approval records shall be kept from the date of expiry of the approval and other records related to electronic messages shall be kept from the date of registration for a period of 1 year, while this period has been increased to 3 years with the new Regulation. Thus, since approvals contain personal data such as e-mail address, while they are registered to İYS system hereby approvals shall be in compliance with The DPL. At this point, it may be possible to provide clarification to the recipients and/or to obtain explicit consent declaration from the recipient according to the nature of the personal data that the approval contains. It is necessary to underline that are explicit consent declaration obtained for processing of personal data and the approval for sending electronic message with related clarification are two different concepts. In addition, with the changes made on storage periods it is necessary to pay attention to changes may occur in especially firms’ VERBIS registries and internal data disposal procedures.
When Will The System Be Brought Into Service
Although the İYS system has not been brought into service, the approvals received from recipients prior to hereby Regulation enters into force and approvals received until the date of the system will be active will be transferred to the system until 01.06.2020. Recipients are obliged to check the approvals registered by service providers until 01.09.2020 at latest, otherwise the approval will be deemed valid.
