Regulatory & Compliance

LEGAL REMEDIES AGAINST SPAM E.MAILS (JUNK E.MAILS) IN TURKEY

WHAT IS SPAM (JUNK) E.MAIL?

Considering that almost everyone has an e-mail address today, “SPAM”, which has become a problem for users, is usually advertisement-containing e-mails sent to e-mail addresses against the wishes of the users. It is also called “SPAM” when a large number of copies of the message with the same content are “forced” to be sent to people, even though they do not want to receive the message in question. 

“SPAM” or “JUNK MAIL” is generally intended to advertise, market a product or deliver ‘pornographic advertisements and messages’ to audiences around the world.

For this reason, personal and commercial violations of material and moral rights may occur in terms of users.

 

IS THERE A REGULATION ABOUT SPAM MAILS IN TURKEY?

Firstly, in accordance with the 5th paragraph of Article 50 of the Communications Law No. 5809;

It is stipulated by the operators that no communication can be made with subscribers and users regarding the services they offer, for marketing, sexual content transmission or political propaganda purposes, by using electronic communication tools such as e-mail without their prior consent.

In addition, in Article 6 of the Law on the Regulation of Electronic Commerce No. 6563, titled “Commercial electronic message sending condition”, it is regulated that electronic messages can only be sent to the recipients with their prior consent, and this approval can be obtained in writing or by all kinds of electronic communication tools.

In the event that a message is sent to more than one person at once by not complying with the conditions specified in the said article, it is decided that the penalty to be imposed from one thousand Turkish liras to five thousand Turkish liras will be increased 10 times to service providers and intermediary service providers who act in violation, in accordance with the 12th article of the same law, to create a deterrent environment.

 

LEGAL REDEMIES

If the message or message contains deceptive elements and the sender is a trafficker and is in the same sector, it is possible to file a lawsuit for prevention and compensation regarding unfair competition within the scope of the Turkish Commercial Code No. 6102. However, if the party sending the message is not a trafficker, the provisions of the TCC will not be applicable.

Within the framework of Article 48 of the Turkish Code of Obligations, business owners whose customers “conflict with false advertisements or other acts contrary to the rules of goodwill” may apply to stop the spam and compensate the damage. Since the commercial advertisement constitutes the scope of the article, the condition of having a commercial relationship (trade relation) is sought and therefore it is not possible for the consumers to apply.

In terms of consumers, the consumer may apply to the Advertisement Board against the damages suffered by the consumers due to spam mails, due to the fact that the spam is not honest and accurate within the framework of Article 16 of the Law on the Protection of the Consumer. As a result of the application made, it is highly-likely that deterrent compensation will be given to the deterrent due to spam mails.

Once again, within the scope of Article 24 of the Turkish Civil Code No. 4721, those whose personal rights have been unlawfully violated as a result of spam mails have the right to demand protection against the perpetrators. Considering that the e-mail address is now considered as a personal data, it is accepted that e-mails sent as spam, e-mails with ideological and political purposes and other content are illegal.

It should also be noted that if the content of spam mails contains deception, immoral images or texts, and also, within the scope of Article 244 of the Turkish Criminal Code, users may be penalized by filing a criminal complaint for placing any data in their information systems and obtaining e-mail or other information.

 

Harun DEMİR

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