The Constitutional Court's Decision Expanding the Liability of Intermediary Service Providers

In the Decision, the Constitutional Court reviewed provisions that excluded e-commerce intermediary service providers from liability with respect to certain consumer claims arising from defective goods and unlawful content. The Constitutional Court held that these provisions were unconstitutional and annulled them, with the annulment to take effect nine months after publication in the Official Gazette.

Legislative Provisions Subject to Review

The provisions challenged before the Constitutional Court were as follows:

1. Article 48/6(d) of the Consumer Protection Law No. 6502
   “...jointly and severally liable with the seller or service provider for obligations relating to delivery or performance and the right of withdrawal, except where the intermediary service provider collects payment on behalf of the seller or service provider and transfers such payment after the delivery of the goods or the performance of the service to the consumer, and except with respect to the exercise of the rights set forth in Articles 11 and 15...”
   
   The phrase “and except with respect to the exercise of the rights set forth in Articles 11 and 15” contained in this provision, which governs the liability of intermediary service providers in distance contracts concluded through their platforms, was the subject of the annulment application.


2. Article 9/1 of the Law on the Regulation of Electronic Commerce No. 6563
   “Unless otherwise provided by other laws, an intermediary service provider shall not be liable for unlawful matters relating to the content provided by the service provider or the goods or services that are the subject matter of such content.”

The annulment request sought the invalidation of this provision in its entirety.

Limitation of the Scope of Review

The challenged provision of Law No. 6502 refers both to Article 11, which regulates consumer rights relating to defective goods, and to Article 15, which contains provisions regarding defective services. However, as the dispute before the Constitutional Court concerned a defective good, the review has been madde limited to Article 11 and no assessment has been made with respect to Article 15.

Although Article 9(1) of Law No. 6563 is generally applicable to all transactions conducted through electronic commerce, the dispute before the Constitutional Court arose from a consumer transaction. Therefore, the Court limited its review to the application of the provision in the context of consumer contracts.

Reasoning of the Constitutional Court

The Constitutional Court found that the challenged provisions significantly hindered consumers from seeking recourse against intermediary service providers for damages arising from unlawful content or unlawful goods and services.

The Constitutional Court emphasized that intermediary service providers are not always merely technical and passive intermediaries and noted that, in certain circumstances, intermediary service providers may possess knowledge regarding the goods or services offered, may exercise influence over the relevant process, and may play an active role in the conduct of commercial activities. Accordingly, the Constitutional Court considered that exempting such entities from liability under all circumstances could leave consumers without protection, particularly where the seller or service provider cannot be reached, resulting in uncompensated losses. In this respect, the Constitutional Court concluded that the existing legal framework lacked sufficient safeguards to prevent risks that could arise to the detriment of consumers.

The Constitutional Court further held that any reduction in a consumer’s assets caused by unlawful content or defective goods and services constitutes an economic value protected under the constitutional right to property. According to the Constitutional Court, the complete exclusion of intermediary service providers’ liability makes it more difficult for consumers to obtain compensation for their losses and undermines the effective protection of property rights.

Conclusion

The Constitutional Court annulled, by majority vote, the phrase “...and Article 11...” contained in Article 48(6)(d) of the Consumer Protection Law No. 6502, finding it contrary to the Constitution.

The Constitutional Court also annulled Article 9(1) of the Law on the Regulation of Electronic Commerce No. 6563 insofar as it applies to consumer contracts, holding it unconstitutional.

The Constitutional Court concluded that both provisions were contrary to Article 5 of the Constitution concerning the fundamental aims and duties of the State, Article 35 safeguarding the right to property, and Article 172 regarding the protection of consumers.

On the other hand, considering that the immediate entry into force of the annulment decisions could create a legal vacuum detrimental to the public interest, the Constitutional Court ruled that the annulment provisions would enter into force nine months after their publication in the Official Gazette.

The full text of the Decision is available here.


Aslı Kınsız, Managing Associate
Sevim Özkan, Associate