The Regulation on Commercial Communication and Commercial Electronic Messaging issued by the Ministry of Commerce (the “Ministry”) on 15 July 2015 (the “Regulation”) was recently amended by the Regulation on the Amendment of the Regulation on Commercial Communication and Commercial Electronic Messaging and the amendments were published in the Official Gazette dated 4 January 2020 and numbered 30998 (the “Amending Regulation”) introducing substantial novelties regarding the principles and procedures relating to commercial electronic messaging.
This Monthly Updates aims to provide a brief explanation on the Regulation and highlights the amendments introduced with the Amending Regulation.
Scope of the Regulation
The Regulation has been enacted as per the Law No. 6563 on the Regulation of Electronic Commerce which was published in the Official Gazette dated 5 November 2014 and numbered 29166 and entered into force on the same day (the “Law”) and mainly regulated the principles and procedures relating to commercial electronic messaging. According the Regulation, real persons and legal entities intending to send commercial electronic messages to promote and/or market their goods or services and/or increase their recognitions are required to obtain the prior consent from the recipients. In this context, the Regulation defines a commercial electronic message as a message containing data, audio and/or video message sent electronically to third parties for commercial purposes.
Major Changes Introduced by the Amending Regulation
The Amending Regulation has introduced novelties to the commercial electronic messaging which were introduced by the Regulation, among others; (i) new principles and procedures regarding commercial electronic messaging; (ii) establishment of a new electronic system; and (iii) obligations to be carried out by those sending such messages to third party recipients.
Commercial Electronic Messaging Management System
As per the Amending Regulation, the Ministry has the power to establish an electronic commercial messaging management system (Ticari Elektronik İleti Yönetim Sistemi), known as IYS (“IYS”), which will enable (i) commercial electronic message senders to receive consents from the intended/target recipients; and (ii) intended/targeted recipients to provide or withdraw their consents. The Ministry is authorized to establish IYS in-house or delegate such power to a third party to establish it. As such, the Ministry has authorized the Union of Chambers and Commodity Exchanges of Turkey (“TOBB”) to establish IYS. In this respect, TOBB is authorized to take all necessary technical precautions to prevent any malfunctions with regards to the transmission of commercial electronic messages and to carry out other procedures deemed necessary by the Ministry with regards to IYS.
The Amending Regulation further states that IYS is the sole platform through which all commercial electronic message senders wishing to send such type of messages for commercial purposes shall firstly register with the system to be assigned a unique number to be used when sending the commercial electronic messages to its intended/target recipients.
Furthermore, as per the Amending Regulation, IYS shall have a technical infrastructure whereby, inter alia, (i) all consents and rejections received by commercial electronic message senders are recorded; (ii) intended/targeted recipients who provided their contents pr eviously could withdraw their consents to receive any commercial electronic messages from previously consented senders; and (iii) all complaints received from intended/targeted recipients are stored. As per the Amending Regulation, the Ministry shall have full access to IYS.
Within the scope of the Amending Regulation, commercial electronic message senders are now obliged to store the consents that they have previously received from the recipients to IYS by 1 June 2020. Following such storage, IYS shall send notifications to all such recorded recipients for reconfirmation. As per the Amending Regulation, if the recipients do not respond to such notification until 1 September 2020, their previous consents will be deemed as valid. Furthermore, the Ministry is authorized to postpone such dates for three months.
Other Changes introduced by the Amending Regulation
The Amending Regulation sets forth further amendments as follows:
- all commercial electronic message senders are required to be registered with IYS. Following such registration, they shall send all their commercial electronic messages to their intended/targeted recipients through IYS and save the consents of the recipients within three business days following their receipt. If the intended/targeted recipients do not give any consent or withdraw their consents through any channel without any reason, the relevant sender shall stop sending any commercial electronic message to such recipient and report such rejection notice via IYS within three business days following their receipt;
- commercial electronic message senders are required to keep the consents of their intended/targeted recipients and other records related to commercial electronic messaging for three years starting from the expiry or withdrawal date of such consents and records. This preservation period was one year under the Regulation and now increased to three years with the Amending Regulation;
- intended/targeted recipients shall be able to provide their consents through IYS by indicating only their electronic contact addresses, while previously under the Regulation they had to submit their names and their electronic contact addresses in writing or through any electronic channel in order to grant their consents to any commercial electronic messaging; and
- tradenames for merchants; and names and surnames for craftsmen shall be provided within commercial electronic messages in audio format; whereby other identifying information, such as brand names or submitted business names shall also be provided by the senders.
As per the Law, persons who fail to comply with the procedures and principles set out in the Regulation as amended with the Amending Regulation shall be subject to administrative fines of TL 5,000 to TL 20,000.
The novelties introduced by the Amending Regulation intent to establish a healthy and safe electronic commercial environment for all parties, including commercial electronic message seanders as well as the intended/targeted recipients through a centralized platform, i.e. IYS. With the establishment of IYS, the consents of the intended/targeted recipients shall be kept in a secure platform and the all approval and complaint processes shall be managed from a single management system.