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Commercial Electronic Messages And Electronic Message Management System

Pursuant to the Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation”) data, audio and visual messages sent electronically via services such as telephones, call centres, facsimiles, automated calling machines, smart recording systems, electronic mails, text messages are regarded as commercial electronic messages. According to the regulative initiatives taken on commercial electronic messages, which are frequently used as a means for marketing, those who wish to send commercial electronic messages are required to register to Electronic Message Management System (“EMMS”).

As per the Regulation on Amendment of the Regulation on Commercial Communication and Commercial Electronic Messages published in the Official Journal dated 28.08.2020, those approvals which have already been acquired with respect to sending of commercial electronic messages must be uploaded to the EMMS until 16.01.2021. After the expiry of this term, the receivers of the commercial electronic messages will have the opportunity to check their approvals and reject them until 16.01.2021.

In addition to the requirement of being registered to the EMMS, the sender of the commercial electronic messages should obtain the receiver’s prior consent. Indeed, pursuant to the section 5(3) of the Regulation, which will come into force on 16.01.2021, it is prohibited to send commercial electronic messages to those persons whose approvals are not in place on the EMMS.

The relevant consent for sending of the commercial electronic messages can be acquired through the EMMS or it also can be acquired externally. However, pursuant to section 7(11) of the Regulation, which will come into force on 16.01.2021, consents acquired externally should be inserted to the EMMS within three business days. Pursuant section 7(12) of the Regulation, those consents which have not been inserted to the EMMS are regarded as invalid. In the wording of section 7(12), there is no clarity as to whether consents inserted after the three days’ period will be regarded as valid or not. However, by taking the Regulation’s purpose and the systematic of section 7 into consideration, it needs to be concluded that consents not inserted into the EMMS within the prescribed period should be deemed invalid.

Pursuant to section 9 the receivers have the right to refuse to receive commercial electronic messages without any need to justify their reason to do so. When a receiver notifies that it so refuses, this refusal renders the consent invalid with respect to the relevant communication line with the receiver. Also, the service provider shall insert the refusal to the EMMS within three business days.

The Regulation also articulates the exceptions to the requirement of acquiring consent for sending electronic commercial messages. Accordingly, section 6 of the Regulation contemplates that consent is not needed for the following circumstances:

  1. When the receiver gives its credentials for the receiver to reach out, messages relating to changes, use, and maintenance regarding the goods or services provided.
  2. Messages on debt collections, debt reminders, information updates, purchase, and delivery or similar circumstances as to ongoing subscriptions or partnerships and when there is a statutory obligation to provide information on the part of service providers. However, in these messages, it is not allowed to recommend, encourage or market any goods or services.
  3. Messages to be sent to merchants or tradespeople. However, if these people have used their right to refuse pursuant to section 9 of the Regulation, then prior consent is required.
  4. Messages sent, by companies who are acting as intermediaries pursuant to securities regulation, having the purpose of informing their clients.

Pursuant to the E-Commerce Act numbered 6563, the Ministry of Trade has the authority to conduct audits, request all sorts of information, documents and ledgers, to examine them and to get copies from them, to get written and verbal information from those who are concerned.

Those concerned are obliged to hand over the requested information, documents and ledgers, their electronic records, and their copies fully and truthfully, to satisfy written or verbal information requests and to render all assistance and convenience. Furthermore, in case of a complaint, the burden of proof regarding transactions to which the complaint is concerned lies upon the persons conducting the e-commerce activity and/or intermediary service provider.

@Kesikli Law Firm

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