Amendments to the Regulation on commercial communication and e-commerce

The Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages dated 15 July 2015 (the “Regulation“) was published in the Turkish Official Gazette No. 30998 of 4 January 2020 (the “Amending Regulation“) and made significant amendments to the Regulation. The most significant amendment is the establishment of the Commercial Electronic Message Management System.

You will find below a brief summary of the amendments made by the Regulation.

(i) Establishment of the Commercial Electronic Message Management System (“MMS“)

Commissioned by the Ministry of Commerce, the Union of Chambers and Commodity Exchanges of Turkey (“TOBB”) has established the MMS, a national common database system that allows Service Providers (“SP“) to store and manage commercial message permissions obtained through calls, messages and/or e-mails; recipients to manage their approvals or refusals for the commercial messages; and authorities to benefit therefrom for the investigation of complaints.

As per amended Article 5 of the Regulation, senders must register and approvals of the recipients must be registered on the MMS in order to enable the sending of any commercial electronic messages.

As per the Regulation, recipients’ approval for receipt of commercial electronic message may be obtained in writing, via the MMS or any other electronic media by SPs. However, where approval is obtained through a method other than MMS, it is mandatory for SPs to register the approval within 3 (three) working days to the MMS. Approvals that are not registered to the MMS shall be deemed invalid and the burden of proof shall be on SP itself.

Existing approval databases shall be transferred and registered to the MMS by SPs by 1 June 2020, and a message shall be sent to the recipients stating that the approvals have been uploaded to the MMS and will be deemed as valid if the recipient does not change his/her approval status before 1 September 2020.

The Ministry is authorised to postpone the above-mentioned dates for 3 (three) months.

The recipient of commercial electronic message may use his/her right of rejection via the MMS and the SPs shall register the rejections received from the recipients in this respect the MMS within 3 (three) business days.

(ii) Contents of Audio Calls

As a new provision, the Regulation provides that the content of audio calls shall include the trade name of the merchants, as well as the name and surname of craftsmen. In addition, the SPs may also provide introductory information such as brand or enterprise name.

(iii) Obligations for Intermediary Service Providers

Amendments to the obligations of intermediary service providers (“ISP“) are as follows:

• ISPs shall provide technical means for the fulfillment of the obligations foreseen under the Regulation for the SPs.
• ISPs must harmonise their systems for sending commercial electronic messages with the MMS. They shall not transmit messages of SPs that are not registered with the MMS and shall verify the recipient’s approval on the MMS prior to sending the commercial electronic message on behalf of an SP. It is worth noting that such requirements shall not be applicable if the message is sent via e-mail.
• ISPs shall notify the MMS if a recipient cancels its subscription. Furthermore, the requirement for the ISPs to mention their brand name, trade name or enterprise name in the commercial electronic message has been removed.

(iv) Change to the retention period for records

The retention period has been extended: SPs/ISPs must now keep approval records for 3 (three) years, up from 1 (one) year.

(v) Complaint procedure and content of complaints

Complaints may now also be submitted via MMS and shall be subject to a preliminary examination over MMS.

If the commercial electronic message was sent through a text message, a visual sample of the related text message must be included in the complaint application.

(vi) MMS Process Schedule

TOBB has announced that the MMS applications for SPs will be launched in January 2020, while the MMS platform will open to SPs from 1 March 2020.

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In compliance with Turkish bar regulations, opinions relating to Turkish law matters that are included in this client alert have been issued by Özdirekcan Dündar Şenocak Avukatlık Ortaklığı, a Turkish law firm acting as correspondent firm of Gide Loyrette Nouel in Turkey.