Recent Development
The Constitutional Court’s (“Court”) decision dated 12 February 2026 and numbered 2026/42 (“Decision”), in which the Court annulled, on the grounds that they were contrary to the Constitution, (i) the phrase “and Article 11” set out in Article 48/6(d) of the Law No. 6502 on the Protection of Consumers (“Consumer Law”), and (ii) Article 9/1 of the Law No. 6563 on the Regulation of Electronic Commerce (“E-Commerce Law”), was published in the Official Gazette dated 2 June 2026 and numbered 33268. The annulment provisions will enter into force on 2 March 2027.
The Decision is available here (in Turkish).
Provisions Annulled by the Desicion
Pursuant to the Decision:
- Under the Consumer Law, the reference to Article 11, which governs consumers’ optional rights in relation to defective goods, in the provision setting out exceptions to the joint and several liability of intermediary service providers with the seller has been annulled.
- Article 9/1 of the E Commerce Law, which provides that intermediary service providers are, as a rule, not liable for unlawful content provided by service providers or for the goods or services subject to such content, has been annulled in respect of consumer agreements.
The provisions annulled by the Decision are as follows:
| Provision Subject to the Decision | Amendment |
| Article 48/6(d) of the Law No. 6502 on the Protection of Consumers | “Distance agreements Persons acting as intermediary service providers shall, in relation to distance agreements to which they intermediate; d) where they collect the price on behalf of the seller or provider, be jointly and severally liable with the seller or provider for obligations relating to delivery or performance and the right of withdrawal, except for cases where the price is transferred to the seller or provider after the delivery of the goods or the performance of the service to the consumer, and for the exercise of the rights set out in Articles 11 and 15; be liable.” |
| Article 9/1 of the Law No. 6563 on the Regulation of Electronic Commerce | “Unlawful content (1)Unless otherwise provided under other laws, an intermediary service provider shall not be liable for unlawful content provided by the service provider or to the goods or services subject to such content. (2) Where an electronic commerce intermediary service provider becomes aware that the content provided by the electronic commerce service provider is unlawful, it shall remove such content from publication without delay and notify the relevant public institutions and organizations of the unlawful content. (3) Upon a complaint by the right holder based on information and documents evidencing an infringement of intellectual and industrial property rights, the electronic commerce intermediary service provider shall remove from publication the product of the electronic commerce service provider that is subject to the complaint and notify both the service provider and the right holder accordingly. Where the electronic commerce service provider submits to the electronic commerce intermediary service provider an objection based on information and documents demonstrating otherwise, the product subject to the complaint shall be republished. Complaints and objections shall include the clear identity and address information of the relevant parties, information regarding the disputed product, the grounds justifying the removal or republication of the product, and such other matters as may be determined by regulation. The right of the relevant parties to apply to judicial and administrative authorities in accordance with the general provisions is reserved.” |
Reasoning of the Decision
In the reasoning of the Decision, the Court referred to the European Union regulatory framework from a comparative law perspective and concluded that intermediary service providers should be distinguished as “active” and “passive”. The Court further held that providing for a general and absolute exemption from liability for active intermediary service providers that have knowledge of or control over the goods or services subject to sale is incompatible with Article 5 of the Constitution which sets out the fundamental aims and duties of the state, Article 35 regulating the right to property, and Article 172 on the protection of consumers. In light of these considerations, the relevant parts of the foregoing provisions were annulled.
Evaluation
From e-commerce law perspective, prior to the Decision, intermediary service providers were not held liable for content provided by service providers or for the goods and services offered through such content, in line with Article 9/1 of the E‑Commerce Law. However, the annulment of this provision in relation to consumer agreements has paved the way for a broader liability regime for intermediary service providers.
In terms of consumer legislation, prior to the Decision, pursuant to Article 48/6(d) of the Consumer Law, intermediary service providers were held jointly and severally liable with the seller or provider for obligations relating to delivery or performance and the right of withdrawal, except for (i) cases where, although the intermediary service providers collected the payment on behalf of the seller or provider, the payment was transferred to the seller or provider after the delivery of the goods or the performance of the service to the consumer, (ii) the exercise of the consumer’s optional rights in the event of defective goods as regulated under Article 11 of the Consumer Law and (iii) the exercise of the consumer’s optional rights in the event of defective services as regulated under Article 15 of the Consumer Law. Accordingly, before the Decision, the relevant provision imposed joint and several liability on intermediary service providers in respect of certain delivery/performance and withdrawal-related obligations, while excluding the consumer’s optional rights relating to defective goods from the scope of such liability regime. With the annulment of the relevant exception, the way has been opened for intermediary service providers, under certain conditions, to become addressees of consumers’ optional rights in the event of defective goods.
The Court expressly stated that the legal gap that would arise due to the annulled provisions, would be of nature to prejudice public interest and postponed the entry into force of the annulments for nine months. Therefore, regulations tailored to the dynamics of electronic commerce are expected to be introduced, adopting an approach that takes into account the nature of the electronic commerce ecosystem and the activities of intermediary service providers.
Conclusion
Following the Decision, significant changes are expected to occur in the liability regime applicable to intermediary service providers with respect to the content provided by service providers. Therefore, it is important for intermediary service providers to (i) closely monitor interpretations in practice and new legislative developments, (ii) review their agreements with service providers in light of current developments, and (iii) structure their commercial planning by taking this new era into account.
