New Regulations Expected for E-Commerce Sites Entered into Force

A. New Definitions

Some important definitions according to the Regulation are as follows;

(a) Intermediation service refers to all kinds of services provided by e-marketplaces to e-commerce service provider sellers and buyers for the realization of e-commerce transactions and delivery of the order,

(b) Internal communication service refers to the system installed in the information and technology infrastructure that e-marketplaces provide free of charge to ensure communication between e-commerce service provider sellers and e-marketplaces in accordance with the intermediary service (this system is structured as a panel, back office, seller interface, etc. in practice),

(c) E-commerce volume refers to the sum of the net transaction volumes of e-marketplaces and e-commerce service provider sellers.

(d) Confirmed electronic contact address refers to the telephone number and e-mail address stated by e-commerce service provider sellers to the e-marketplace and verified by the e-marketplace.

(e) Total sales revenue refers to the sum of the revenues generated by e-marketplaces or e-commerce service provider sellers from e-commerce and non- e-commerce sales.

(f) With Economic integrity refers to;

• the ownership by a person, directly or indirectly, of at least 25% of the shares or the majority of the voting rights of a commercial company, or the shares that enable the same person to take decisions regarding the management of the company,
• the right of a person to elect the number of members constituting the majority to take decisions in the management board in accordance with the articles of association of the company,
• constituting the majority of voting rights alone or together with other shareholders, based on an agreement, in addition to its voting rights,
• contractual domination of a commercial company by a person or,
• the relationship between all commercial companies connected with this person and the businesses belonging to this person based on the above criteria, or the management of more than one commercial company by the same person or persons, regardless of whether they are shareholders or not.

E-marketplaces and e-commerce service provider sellers are classified as medium, large and very large scaled in line with the following criterion:

In Terms of E-Marketplaces	Annual Net Transaction Volume	Number of Transactions Excluding Cancellations and Refunds (Unit)
Medium Scaled	Over 10 Billion TL	-
Large Scaled	Over 30 Billion TL	Over 100.000
Very Large Scaled	Over 60 Billion TL	Over 100.000

 

In Terms of E-Commerce Service Provider Sellers	Annual Net Transaction Volume	Number of Transactions Excluding Cancellations and Refunds (Unit)
Medium Scaled	Over 10 Billion TL	Over 10 Million
Large Scaled	Over 30 Billion TL	Over 10 Million
Very Large Scaled	Over 60 Billion TL	Over 10 Million

B. Unlawful Content and Unfair Commercial Practices

E-marketplaces are not responsible for any unlawfulness regarding the content provided by the e-commerce service provider sellers and the goods or services subject to the content. However, in case e-marketplaces are aware of such a situation, it is obliged to (i) remove the content within 48 hours and (ii) notify the e-commerce service provider seller and the related institutions and organizations with justification.

Unfair commercial practices lead a party to a commercial relationship that would not normally be a party by interfering with the ability to make a decision or forcing a party to adopt a certain decision. Examples that we consider important are as follows;

(a) Failure to make the payment to the e-commerce service provider seller in full within 5 business days at the latest from the date on which the product sales price is entered into the e-marketplace’s account and the order is received by the buyer,

(b) Not specifying the terms of the commercial relationship with the e-commerce service provider sellers in a written or electronic intermediation agreement, unclarity of the agreement or not storing the agreement in the internal communication system in such a way that it can be accessed by the e-commerce service provider sellers,

(c) Determining the periods for the right of withdrawal above the periods specified in Law No. 6502 on the Consumer Protection by e-marketplaces without the prior consent of the e-commerce service provider seller, and

(d) Making inaccurate or misleading statements and notifications to e-commerce service provider sellers about their products and activities by e-marketplaces to the sellers.

C. Protection of Intellectual Property Rights

Infringements of intellectual and industrial property rights in e-commerce generally focus on the infringement of trademark and industrial design rights of the products offered for sale. Complaints about these violations shall be made to the e-marketplace via (i) internal communication system, (ii) notary public or (iii) KEP with the information and documents specified in the Regulation:

E-marketplaces must remove the product subject to the complaint from publication within 48 hours at the latest upon receipt of the complaint application and notify the e-commerce service provider seller and the right holder. E-commerce service provider sellers also reserve the right to object to the complaint submission in the notification.

D. Intermediation Agreement

The minimum conditions to be included within the intermediation agreement have been determined. Without being limited to the aforementioned, it is necessary to specify the conditions that require the restriction of the intermediation service, the service fees and terms requested from the e-commerce service provider seller, the access information to the internal communication system, and whether the e-commerce service provider seller will have access to the data obtained after the termination of the contractual relationship.

Specifying the parameters used in ordering the goods or services or recommending them to the buyer is also among the minimum elements, and if there is more than one parameter, the criteria that will affect the priority order between them should also be included. It is not obligatory to share algorithms or any information that will deceive the buyer or cause harm by manipulating the search results, by limiting the requirement with the important regulation introduced in the regulation. If the e-marketplace is of medium, large or very large scaled, an additional obligation to provide access to data free of charge in favour of sellers is regulated, which is called data portability. In this case, it is necessary to include the information that the seller's data access and data transfer requests must be met within 15 days by anonymizing the buyer’s information.

It is emphasized that the relevant provisions of the intermediation agreements concluded before January 1, 2023, and failing to meet these requirements set by the Law within 6 months after this date will be deemed invalid.

In terms of restriction, suspension and termination of the intermediary service; it is obligatory to specify the objective criteria in the intermediation agreement and to obtain the e-commerce service provider seller's defense in the presence of the specified situations, otherwise the intermediary service cannot be restricted by the e-marketplace. The cases involving fraud, data breach or other cyber security risks constitute exceptional circumstances to the restriction.

E. Other Obligations

In terms of the seller's and e-marketplace's obligation to provide information; e-commerce service provider sellers and e-marketplaces are required to keep the minimum information listed under the heading "contact" in a way that can be directly accessed on the homepage of the platform.

In terms of payment services, the provision of payment services by e-commerce service provider sellers and e-marketplaces, such as credit services on the platform and providing services with electronic currencies, is severely restricted.

In terms of postal and transportation services; very large-scale e-marketplaces will not be able to engage in postal service provider activities, except for sales made as an e-commerce service provider and non-e-commerce sales, on the platform where the intermediary service is provided.

In terms of advertising and discount budgets; As of January 1, 2023, the advertising and discount budgets limited for e-commerce service provider sellers and e-marketplaces in accordance with their net transaction volumes for the calendar year 2022 will be applicable. It is regulated that sponsorship expenditures up to 25% of the said budget will not be included in the advertising budgets to be calculated. The Regulation also lists the situations that will be considered as discounts in any case, and the material values of promotions, awards, coupons, gift vouchers, gift vouchers, discount codes and free products provided to e-commerce service provider sellers or buyers, which are the most common in practice, will also be counted within this budget.

In terms of stock information, e-marketplaces are responsible for (i) transmitting the order information to the e-commerce service provider seller simultaneously and (ii) providing the necessary integration with the e-commerce service provider seller for updating the stock information of the goods mediated for sale on the platforms.

In terms of the internal communication system; the transactions envisaged to be carried out through the relevant system in line with the obligations may be carried out by technical means such as e-mail until July 1, 2023.

In terms of promotion and access in online search engines; e-commerce service provider sellers or e-marketplaces will not be able to advertise keywords consisting of registered trademarks of persons without obtaining their prior written and electronic approval. In addition, in terms of medium, large and very large-scale e-commerce service provider sellers and e-marketplaces, it is regulated that access cannot be provided between the platforms belonging to them or the persons with whom they are in economic integrity and that the promotion of each other cannot be made on these platforms.

From January 1, 2024;

(a) The e-marketplace will be obliged to verify the information shared by the e-commerce service provider seller under the obligation to provide information and not to provide intermediary services to sellers whose information it has not verified. In this direction, the e-marketplace will check the accuracy of the e-commerce service provider seller's identifying information within the first 3 months of each calendar year and if it determines that this information is outdated, it will notify the e-commerce service provider seller via the internal communication system and will ensure that the information is updated by giving a maximum of 3 business days.

(b) E-marketplaces shall not offer for sale or intermediate the sale of goods bearing the trademark of the e-marketplace itself or of persons with whom it is in economic integrity, or for which it owns the right to use the trademark, on the platform where it provides intermediary services. In case the goods in question are offered for sale on different platforms, it is regulated that access cannot be provided between platforms and platforms cannot promote each other. This regulation will not apply to (i) goods bearing the trademark or owning the right to use the trademark of persons who obtain more than half of their total sales revenue from sales other than e-commerce, and (ii) periodicals such as magazines and newspapers, and devices whose hardware and software exclusively enable the reading, listening and use of digital copies of electronic books.

(c) Medium, large and very large e-marketplaces will be required to submit to the Ministry of Trade (i) the independent audit report containing the minimum elements set out in the Regulation and (ii) the regulatory compliance report in April of each calendar year.

In terms of e-commerce licenses that will be effective as of January 2025; obtaining an e-commerce license is mandatory in case the thresholds are exceeded by e-commerce service provider sellers and e-marketplaces. The Regulation outlines the application process for e-commerce licenses, monetary thresholds, license fees, finalization of the application, and renewal of the application.

It is important to note that intermediary agreements signed before January 1, 2023 will be invalid unless being compliant with the Regulation until June 1, 2023 at the latest.

The full text of the Regulation is available here.

MORAL | KINIKOĞLU | PAMUKKALE | KÖKENEK
Dilek Akdaş Kökenek, Partner
Bahar Esentürk, Senior Associate
Dilara Kürkçüoğlu, Associate