The decision of the 3rd Civil Chamber of the Supreme Court with File No. 2021/4000 and Decision No. 2021/11403 (“Decision“) was published in the Official Gazette on 25 January 2022. The Decision includes essential remarks concerning the liability of intermediary service providers for the content, and goods and services subject to such content, in the electronic environment they provide.
The Decision is available here (in Turkish).
What Does the Decision Signify?
As per Article 9 of Law No. 6563 on the Regulation of Electronic Commerce (“Law“) and Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Communication (“Regulation“), intermediary service providers are not obliged to control the content provided by third parties using the electronic environment they provide. Nevertheless, certain previous decisions of the consumer arbitral tribunals and judicial decisions held that intermediary service providers are jointly and severally liable for defect along with the sellers using the electronic environment they provide due to “trust liability” and “the defect in intermediary service providing.” The Supreme Court addressed the liability of the intermediary service providers for the content and the goods and services subject to the content and held a guiding decision on the issue.
The Decision relates to a consumer (defendant) who applied to the consumer arbitral tribunal with a request for a refund after purchasing a defective product through the electronic commerce platform operated by the intermediary service provider (plaintiff). Following the acceptance of the application, the intermediary service provider upheld the decision to the consumer court and requested the annulment by claiming lack of capacity to be sued. The relevant first instance court dismissed the case by stating that the intermediary service provider is liable and that the recourse relationship between the seller selling on the electronic commerce platform and the intermediary service provider constitutes their internal relationship; on the other hand, the consumer who tried to receive the service acted with confidence in the name of the intermediary service provider.
The Ministry of Justice requested the reversal of the decision for the benefit of law by stating that attributing the liability for the defect to the intermediary service provider was inappropriate pursuant to Law No. 6502 on Consumer Protection and the court’s decision violated the procedure and the law.
The Supreme Court reversed the verdict of the court of first instance for the benefit of law based on the following grounds:
- The parties to the distant sales agreement executed within the scope of the consumer transaction subject to the dispute are the relevant consumer and the business selling on the electronic commerce platform.
- The plaintiff company is an intermediary service provider that enables electronic commerce over the internet.
- The intermediary service providers are not obliged to control the content provided by the persons using the electronic environment in which they provide services in accordance with the relevant provisions of the Law and the Regulation.
- Therefore, the plaintiff intermediary service provider is not liable for the defective goods.
The Decision bears critical importance in terms of the operations of intermediary service providers. The Decision proves that the intermediary service providers cannot be held liable for the content provided by the service providers using the electronic environment they provide or the defects related to the goods and services subject to these contents. The Decision will be guiding in terms of the uniform application of the legislation, which has been implemented in multiple ways especially before consumer arbitral tribunals.