The new Regulation on E-Commerce Intermediary Service Providers and E-Commerce Service Providers (“Regulation”) has been published in the Official Gazette dated December 29, 2022, and entered into force on January 1, 2023. The Regulation includes provisions on a range of subjects including certain obligations of Intermediary Service Providers and Service Providers, and rules governing their business relations. With this respect, the highlights of the Regulation are explained below.
Obligation to Inform and Verify
With the regulation, requirements are put in place for Service Providers and Intermediary Service Providers to provide certain information on the e-commerce platforms such as identifying information like their commercial title and tax no/company registration no, communication information like registered e-mail address and phone number, and codes of conduct of any trade association they are a member of. In addition, the Intermediary Service Providers are required to verify and keep updated the information provided on their platforms by the Service Providers. Intermediary Service Providers are prohibited from servicing the Service Providers whose information is not verified and can only serve for their current orders those who do not update their information on given periods.
Intermediary Service Providers and Service Providers that conduct their business on their own electronic medium are obliged to have directly accessible through their landing page, a “transaction guide” that includes the following information:
- Necessary technical steps such as how to choose the goods and services, how to enter delivery and payment information, and how to confirm an order,
- Whether or not the agreement will be stored electronically and the customer will later be able to access the agreement on the same medium, and how long will this access be provided,
- Information that tools such as an order summary and option to revert will be provided to allow the purchaser to detect any mistakes in data entry before the purchase,
- Any alternative conflict resolution mechanisms available to the purchaser.
Illegal Content and Unfair Business Practices
- It is emphasized that unless otherwise determined by other legislation, the Intermediary Service Providers are not responsible for any illegal aspects of the content provided by the Service Providers and the goods or services related to said content. However, they are obliged to notify the Service Provider and the relevant public institutions within 48 hours if they become aware that any content provided is illegal.
- On the other hand, the Intermediary Service Providers are explicitly prohibited from engaging in unfair business practices. Within the scope of the Regulation, any practice of the Intermediary Service Provider that substantially disrupts a Service Provider’s business activities, that inhibits its ability to make reasonable decisions, or that forces it to make a decision that a party to a commercial relation it would not normally be a party to is considered unfair. Some examples of unfair business practices listed in the Regulation include.
- Intermediary Service Provider not making a payment to be made to the Service Provider for the sale of a good or service at the latest within 5 working days after the date the payment is entered into the Intermediary Service Provider’s possession and the order has been delivered to the purchaser,
- Forcing the Service Provider into participating in the promotional sale of goods or services, including the unilateral change of the sales prices by the Intermediary Service Provider,
- Not determining the conditions of the business relation with the Service Provider via a written or electronic intermediary service agreement, this agreement not being clear or not being stored within the internal communications system to be later accessed by the Service Provider,
- Unilaterally and retroactively amending the terms of the intermediary service agreement against the Service Provider’s benefit, or including any terms in the intermediary service agreement that allows such amendment to be made
Intellectual and Industrial Property Rights
The regulation also stipulates the method of and the necessary information to be provided with any intellectual and industrial property rights violation claim to be made to the Intermediary Service Providers. Accordingly, the Intermediary Service Providers are obliged to remove from publication the product that is the subject of such a claim and notify the claimant as well as the relevant Service Provider. The notification made to the Service Provider also includes the methods of appeal against the claim. Similarly, the method of and the necessary information to be provided with an appeal application by the Service Providers against an intellectual and industrial property claim are also stipulated in the Regulation. Intermediary Service Provider is obliged to republish the subject product if it is explicitly apparent from the information and documentation provided by the Service Provider that the appeal against the claim is legitimate, and again to notify the relevant claimant and Service Provider. However, the Intermediary Service Provider’s obligation to investigate is limited only to the information and documentation provided by the Service Provider.
Intermediary Service Provider and Service Provider Relation
Furthermore, certain crucial aspects of the business relations between the Intermediate Service Provider and the Service Provider, and their rights with respect to such relation are stipulated in the Regulation. The minimum required elements of the intermediary service agreements between the Intermediary Service Providers and the Service Providers are listed, the conditions for the unilateral amendment of the terms of the intermediary service agreement by the Intermediary Service Provider as well as the Service Providers’ relevant rights are defined, and the terms regarding limiting, putting on hold, or terminating the intermediary service agreement are regulated.
Finally, the Regulation defines the terms of additional obligations for Intermediary Service Providers and Service Providers on topics such as internal communications systems, promotion, and access to online search engines, data usage, independent audits, and official reports, advertising and discount budgets, license requirements, and others, some of which may be affected by the transaction volume thresholds that are also defined with the Regulation.