28 August 2020Murat Volkan DülgerCommentary

Introduction

This work was written in Turkish. The summary on this page is a translation; the citation gives the original title in parentheses.

The “Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages” (“the Amending Regulation”), which introduced new rules on the process of sending commercial electronic messages, had been published in the Official Gazette No. 30998 of 4 January 2020. By bringing the Message Management System (“İYS”) into operation, the Amending Regulation had in effect opened a new period for electronic commerce legislation.

Accordingly, service providers wishing to send commercial electronic messages were required to register with the İYS by 1 June 2020 and to transfer to the İYS the consents they had previously obtained. I will deal in a more detailed article with all the principles relating to the İYS, such as what obligations it introduces and who is subject to them; here I wish only to touch on the deadlines for applying to the İYS in view of the latest postponement.

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Full text

This text is a translation of the Turkish original, prepared for this website. Numbers in square brackets are the page numbers of the original; sources in the footnotes are given as in the original. For citation, the original publication (PDF) is authoritative.

(The final date for the application periods has been extended to 1 December 2020.)

The “Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages”1 (“Amending Regulation”), which introduces new rules on the process of sending commercial electronic messages, was published in the Official Gazette of 4 January 2020, No. 30998. By essentially bringing the Message Management System (“İYS”) into operation, the Amending Regulation in fact opened a new era for electronic commerce legislation.

Accordingly, service providers wishing to send commercial electronic messages were required, by 1 June 2020,
to register with the İYS and also to transfer to the İYS the consents they had previously obtained.
Although I shall deal, in a more detailed article, with all the principles relating to the İYS, such as which obligations have been introduced
with the İYS and who is subject to these obligations,
here, in view of the most recent postponement, I wish to touch only on
the periods for applying to the İYS.

The periods laid down by the Amending Regulation were postponed twice:

• The announcement of the Ministry of Trade of 23 May 2020

The first postponement of the periods laid down by the Amending Regulation was made by the Ministry of Trade (“Ministry”)
on 23 May 2020 by means of a published announcement2. The Ministry,
on the ground that significant disruptions were being experienced in business processes owing to the Covid-19 pandemic
and in order not to put businesses at a disadvantage, had announced that it was postponing the date by which service providers must upload consents to the İYS
until 31 August 2020. Indeed, the Amending
Regulation, by its Provisional Article 2, had conferred on the Ministry of Trade a three (3)-month power
of postponement. This announcement also stated that consumers had to check the consents they had previously given, via the İYS, by 30
November 2020, and that, if within this period
the right to refuse was not exercised, those transferred to the İYS would be deemed
to be approved.
Another point to be noted with regard to this announcement was that, as far as the articles of the Amending Regulation
were concerned, there was no postponement whatsoever, and that for these articles
the date of entry into force still remained 1 September 2020. By the postponement made,
on the other hand, the uploading of consents by service providers was extended until 1 September 2020.
Thus the transitional period of three (3) months that had been provided for service providers before the postponement
ceased to exist. For this reason, service providers and intermediary service
providers still had, by 1 September 2020,
to complete all their integrations relating to the İYS. This problem, however, was resolved by the second
postponement.

• The postponement made by the Official Gazette of 28 August 2020, No. 31227

After the announcement explained above, the periods laid down by the Amending Regulation were postponed for the second time by the “Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages” published in the Official Gazette of 28 August 2020, No. 31227. It should be noted that this postponement, introduced this time by a legislative act, also changed the dates of entry into force of the provisions of the Amending Regulation. In this way the problem that had arisen with the announcement explained above was in fact resolved as well. For, since there had been no postponement of the dates of entry into force of the articles, the transitional period provided for service providers had ceased to exist, and the result had been that service providers had to carry out their consent-uploading processes and their integration processes simultaneously. With the second postponement, by contrast, a transitional period has once again been provided for service providers, as will be seen below.

In this context, the new deadlines introduced for the process of applying to the İYS are as follows:

Obligation Persons required to fulfil Final date for fulfilling

the obligation the obligation*

Applying to the İYS and uploading the consents previously obtained by transferring the existing databases to the İYS. | Service Provider | 30 November 2020

Sending by the İYS to recipients of a message containing the information that the consents have been uploaded to the İYS, that they must be checked by the recipients themselves and that, if they are not checked, these consents will be deemed valid, and that the possibility of refusal may be exercised via the İYS | İYS | 1 December 2020 – 15 January 2021

Final date for consents that have not been checked by recipients, or that have been checked but not refused, to be deemed valid | Recipients | 15 January 2021

Entry into force of the provisions of the Amending Regulation setting out the principles relating to the İYS16 January 2021
* For the dates specified in the Regulation by the phrase “until …”, the final date has been stated by taking the preceding
day into account.
On the other hand, the Ministry has been given the power to postpone these dates by six months, having regard to the nature of the service providers and
the size of their numbers of commercial electronic message consents. Although
the nature of this postponement is not entirely clear, it may be said that a procedure is envisaged whereby certain criteria will be set and, for each criterion, different
periods of postponement will be laid down. We shall understand this clearly if, for
applications to the İYS, a further postponement decision is issued.

Footnotes

  1. https://www.resmigazete.gov.tr/eskiler/2020/01/20200104-2.htm ↑
  2. https://www.eticaret.gov.tr/duyurular/10012/detay

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