The Regulation on the Amendment of the Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation“) was published in the Official Gazette No. 30998 on January 4, 2020. The Regulation introduces significant amendments to the electronic commercial communication practice.
The Regulation introduces the commercial electronic messages management system (“İYS”) and several changes to the consent and refusal mechanisms.
- Article 10/A introduces a new mechanism, İYS, in order to facilitate the consent management system for service providers, intermediary service providers and recipients. Information on recipients’ consents and refusals regarding commercial electronic messages are kept within the İYS, which also enables recipients to file a complaint and give or withdraw their consent. The recipients whose consents are not on the İYS cannot be contacted through commercial electronic messages. The system will be established and managed by the Union of Chambers and Commodity Exchanges of Turkey.
Obligations of Service Providers
- The Regulation states in Articles 5/2 and 5/3 that real and legal persons who want to send commercial electronic messages are required to enroll in the İYS and the recipients whose consents are not on the İYS cannot be contacted through commercial electronic messages. These provisions will enter into force on September 1, 2020.
- Commercial electronic messages sent to merchants or craftsmen are still exempt from the consent requirement. However, service providers must still store their electronic communication addresses on the İYS to verify whether recipients used their rights of refusal.
- As per Provisional Article 2 of the Regulation, service providers must transfer duly obtained consents on to the İYS by June 1, 2020. Recipients should control their consent declarations on the İYS by September 1, 2020, after which commercial electronic messages sent will be considered as sent based on a valid consent.
Obligations of Intermediary Service Providers
- Intermediary service providers must maintain the technical infrastructure to enable the service provider to fulfill its obligations under the legislation, and the intermediary service provider must harmonize its system for commercial electronic messages with the İYS.
- Intermediary service providers cannot send commercial electronic messages for service providers who are not enrolled in the İYS and are obliged to verify their consent on the İYS before sending commercial electronic messages on behalf of service providers. This control obligation is not applicable to commercial electronic messages sent through e-mail. These changes will enter into force on September 1, 2020.
- Intermediary service providers must obtain service providers’ declarations, in cases where service providers want to send commercial electronic messages without the consumer’s consent, concerning changes to the product or service provided to the recipients, messages about continuous memberships or messages sent related to capital markets informing service providers’ consumers.
- Intermediary service providers who send commercial electronic messages as per the instructions of service providers must provide the information and document requests related to complaints through the İYS within 15 days.
- According to the change introduced by Article 7 of the Regulation, apart from the recipient’s positive declaration of intent, name and surname, the recipient’s electronic communication address must also be included in the consent declaration. With regards to the consents obtained through the İYS, there must be a positive declaration of intent and electronic communication address. The foregoing changes will enter into force on September 1, 2020.
- Further, the Regulation provides for a 24-hour period in which the information regarding the given consent must be communicated to the recipient’s electronic communication address, if the consent is acquired in an electronic environment. However, this requirement is not applicable to consents obtained through the İYS. This obligation will enter into force on September 1, 2020.
- Consents that are not obtained through the İYS must be recorded to the İYS within three days by the service provider. Consents that are not recorded to the İYS will be deemed invalid.
- The Regulation also states that the burden of proof regarding the acquisition of consent is on the service provider if İYS is not used. Moreover, the obligation of service providers and intermediary service providers to keep records regarding electronic communication messages is increased from one year to three years from the date the consent becomes invalid for consents, and from the date of the record for other records.
Right of Refusal
- As per the Regulation, service providers must include a consumer service number, short message number provided by the service provider or the İYS, or a URL dedicated to refusals only or any similar communication address within the electronic message. Recipients may use their rights of refusal through the İYS. Service providers must notify the İYS about received refusal notifications within three days of their receipt.
The changes aim to simplify the management of recipients’ consents through the İYS by becoming the go-to platform for all of their needs. The İYS is expected to provide a safe environment to host consent and refusal records and enable recipients to give or refuse consent or file a complaint about commercial electronic messages. Parties should carefully organize the transition period to avoid any non-conformity with the Regulation.
As the Regulation brings substantial changes to the practice of commercial electronic communication, all service providers and intermediary service providers must carefully review the amendments and take active steps accordingly. Moreover, recipients are recommended to review their consents on the İYS.