Commercial Electronic Message and the Legal FrameworkApril, 2021, ERDEMİR&ÖZMEN ATTORNEY PARTNERSHIP
Commercial Electronic Message and the Legal Framework
Today, as digital marketing gains considerable prominence, many businesses use commercial electronic messages very frequently. However, risks and problems, such as unsolicited commercial messages to the phones or e-mail addresses of individuals, or freely sharing of contact details with unintended third parties, arise due to the widespread use of commercial communications. In order to prevent such problems, legal arrangements have been issued and new surveillance systems have been established.
This newsletter evaluates the legal arrangements regarding commercial communications and commercial electronic messages.
What is commercial electronic message?
Commercial electronic messages are such messages with data, audio and video content, which are sent for commercial purposes and performed in electronic environment by using means such as telephone, call centers, fax, automatic dialing machines, smart voice recorder systems, electronic mail, short message services.
Those that wish to send commercial electronic messages can either send such messages by their own means or using an intermediary service provider. However, the message senders have obligations that they must observe within the scope of the Law numbered 6563 on the Regulation of Electronic Commerce, the Regulation on Commercial Communication and Commercial Electronic Messages, the Personal Data Protection Law numbered 6698 and other relevant legislation.
What are the points that must be complied with when sending commercial electronic messages?
Service providers send commercial electronic messages to the electronic contact addresses of the recipients in order to promote and market their goods and services, to promote their business, or to increase their recognition by means of contents such as celebrations and wishes. Commercial communications must take place in a way that is understandable by the recipients, transparent, and based on practical applications. If promotions such as rebates and gifts and promotional competitions or games are offered, this characteristic must be clearly identified during the communication, the terms of benefiting from them must be easily accessible and these terms must be clear and be understandable without leaving no room for doubt.
Nonetheless, it is not legally possible to send commercial electronic messages without the prior approvals of the recipients. Such approval may be obtained in writing or through any electronic communication means or through the Commercial Electronic Message Management System (“the IYS”). Such approval granted by the recipient is considered valid unless the recipient exercises his right to refuse. In case the recipient provides his contact information in order to be contacted, there is no need to obtain approval additionally for commercial electronic messages regarding change, use and maintenance of the goods or services provided. However, commercial electronic messages can be sent to tradesmen and merchants without prior approval.
It is prohibited to request for approval by sending commercial electronic messages to recipients who do not grant approval. The approval text shall not contain the affirmative declaration of will, as a preselected one. The service provider shall not require the approval for commercial electronic messages from the recipient as a prerequisite for the supply of the goods and services it offers.
For the approvals that are not received through the IYS, the burden of proof that the approval has been obtained lies on the service provider. The approvals that are not received through the IYS must be entered by the service provider in the IYS within three business days, and the approvals not entered in the IYS shall be deemed to be invalid.
The approval can be obtained in writing, via electronic communication means or through the IYS. The following are sought in the approval: The recipient’s affirmative declaration that the recipient accepts to receive commercial electronic messages, the recipient’s name, surname and electronic contact address; in the approvals received through the IYS, the affirmative declaration of approval and electronic contact address; and in the approvals received in physical environment, in addition to the above, signature of the person that grants the approval.
In the event that the approval is received in electronic environment, the information that the approval has been received must be sent to the electronic communication address of the recipient within 24 hours (by providing the recipient with the opportunity to refuse). This message is not required for the approvals received through the IYS.
In case the approval is obtained through inclusion in the content of a contract such as subscription, sales or membership agreement, it is necessary that the approval is obtained, using letters which are minimum twelve font size, under the subheading “commercial electronic messages”, before the affirmative declaration of will or signature on the last page of the agreement text, by providing the opportunity to refuse.
In the case of an agency contract, an operating contract with specific authorization, or a dealership contract, it is deemed that the approval granted in the name of a party to the contract is also granted in the name of the other party to the contract, limited to the goods, services or brands subject to the contract.
The approval may also be used by the service provider for the goods and services offered as promotional ones, provided that they are with its own goods and services. However, this promotional relationship is required to be linked to a contract.
Cases not requiring the approval
In case the recipient provides his contact information in order to be contacted, there is no need to obtain approval additionally for commercial electronic messages regarding change, use and maintenance of the goods or services provided.
In the case of an ongoing subscription, membership or partnership status, or collection, debt reminder, information update, purchase and delivery or a similar circumstance, it is not mandatory to obtain prior approval for the messages containing notifications regarding these circumstances, or in these cases for which the obligation to provide information is introduced for the service provider by the relevant legislation. However, no advertising and marketing should be done in such notifications.
In case the recipients are merchants or tradesmen, there is no need to obtain prior approval for commercial electronic messages that will be sent to their electronic communication addresses. However, if merchants and tradesmen exercise their right to refuse, it is prohibited to send commercial electronic messages unless their approvals are obtained again.
It is not mandatory to obtain approvals for commercial electronic messages sent to their clients, for information purposes, by the companies engaged in brokerage activities under the legislation on capital markets.
How should the content of a commercial electronic message be?
Information enabling the service provider to be identified, accessible contact information such as telephone number, fax number, short message service number, e-mail address depending on the type of communication, subject and purpose of the message depending on the type of communication, and information about on behalf of whom the communication is made (in case the communication is made on behalf of someone else) should be contained in a commercial electronic message. The content of the message must comply with the approval obtained from the recipient. A commercial electronic message shall contain at least one of the accessible contact information of the service provider such as telephone, fax, short message service number and e-mail address, depending on the type of means of electronic communication.
In case promotions such as rebates and gifts and promotional competitions or games are offered in a commercial message, these must be expressly specified in the message. Durations of the promotions and the conditions required to benefit from the promotions shall be presented clearly and without leaving no room for doubt, by means of easily accessible methods such as a dedicated URL address or customer service phone number.
For tradesmen, the MERSIS (Central Registration System) number and the trade name of the tradesman; for merchants, the name, surname, Republic of Turkey identification number or taxpayer identification number of the merchant, and other identifying information such as brand or business name shall be contained in the header or content of the commercial message. If limited fields such as short messages are used, the commercial message must contain the MERSIS number, for tradesmen, and the name, surname and Republic of Turkey identification number or taxpayer identification number, for merchants. In addition to the above, the service provider may indicate other identifying information such as brand or business name.
For tradesmen, the trade name of the tradesman and for merchants, the name and surname of the merchant shall be included in the content of the voice call. In addition to the above, the service provider may indicate other identifying information such as brand or business name.
If the nature of the commercial electronic message cannot be clearly understood from its content, an expression determining the characteristic such as promotion, campaign or such other information shall be indicated in the commercial electronic message. Such phrase shall be indicated at the beginning of the message in the messages sent via short message, in the subject section in the messages sent via e-mail, and at the beginning of the conversation for voice calls.
Recipients’ right to refuse
The recipients have the right to refuse commercial electronic messages at any time, without stating any justification. The service provider is obliged to ensure that the refusal notification is transmitted easily and free of charge through electronic communication means and to provide the relevant necessary information in the message it sends. The service provider has to cease sending electronic messages to the relevant recipient within three business days of the receipt of the refusal request.
In order for the recipient to make the refusal request, the service provider must indicate in the commercial electronic message the customer service number provided by the service provider or by the IYS, the short message service number or accessible contact address such as a URL address specific to the refusal notification only; and the refusal mechanism must be indicated in every commercial electronic message sent. The refusal notification must be submitted easily and free of charge through the same communication channel as that of the commercial electronic message.
In case the recipient refuses to receive commercial electronic messages, the service provider must cease sending commercial electronic messages to the recipient within three business days following the receipt of the refusal request and declare to the IYS the transmitted refusal notifications within three business days. The recipient may also exercise the right to refuse, through the IYS.
Message management system
The IYS is a system which enables the receipt of approvals for commercial electronic messages, the exercise of the right to refuse and the management of the complaint processes. Real and legal persons that wish to send commercial electronic messages shall be registered with the IYS. Commercial electronic messages shall not be sent to recipients without their approvals on the IYS.
The IYS was put into service on 1 January 2020, and the applications for the system have started to be received from service providers. On the other hand, citizens are able to access the system as of 1 January 2021 and to view for which service provider, on what date and from where they granted their approvals and to exercise the right to refuse commercial electronic messages.
In conclusion, electronic communication methods become one of the most fundamental elements of trade in the age of digital marketing. However, various legal arrangements are introduced for the protection of the privacy and rights of individuals while these methods are used, and certain specific conditions to be observed while these activities are carried out have been established, in addition to the system (i.e., the IYS) for the surveillance and supervision of these activities.
In this direction, those that wish to send commercial electronic messages must obtain approval from the recipients in compliance with the legislation, set the message content in compliance with the legislation, provide an easily accessible refusal opportunity to the recipients, and register with the IYS and comply with the notification obligations required by the system.