Turkish Law Blog
Current Changes on Commercial Communication Brought by the (Amendment) Regulation
Founding Attorney Hatice Zümbül – Legal Intern Mehmet Turgut
The Regulation on the Amendment to the Regulation on Commercial Communication and Commercial Electronic Messages has been put into force with effect from 1 September 2020 (the articles – 1,2,3,7,9,11,12,13,15,17 and 18- will be applied as of 1 September 2020). The Regulation brings about changes regarding natural or legal person who wishes to send commercial electronic message in context of tracking of commercial electronic message approval and the systematic of sending. In this sense, “Message Management System” (“IYS”) has been constituted for receiving commercial electronic message approval, the use of rejection right and operation of process of complaint. The aim of the IYS is to operate effectively the process of approval, rejection and complaint through the system itself.
In this context, regulations on commercial communication and commercial electronic messages, definition of the regulation and important changes brought, by the Amendment, on the practices will be addressed in the article.
2. Description of the Commercial Electronic Message
First of all, it is better to explain here the description of commercial electronic message. Commercial electronic message is referred to a message sent, in the electronic area, using through phone, fax, text, electronic mail, automatic call centre, smart voice recorders for the commercial purpose.
3. The Scope of the Regulation and the Exceptions
This Regulation herein applies to the transactions such as advertising products and service, introducing or marketing the business or making such transactions on behalf of someone else through electronic communication tools by legal or natural person.
Exceptions are explained under the article 2 of the Regulation on Commercial Communication and Commercial Electronic Messages. According to the Regulation herein the electronic commercial messages are excluded as follow;
i. The electronic commercial messages sent by the operator who are under the scope of the Law on Electronic Communication numbered 5809 in order to introduce or marketing only its service and products, or introducing its business to the member and user of the operator herein,
ii. The electronic commercial message sent by private universities to its students and parents.
iii. The informative messages sent by radio and television institutions established under the Law numbered 6112 in order to inform and educate society.
iv. The messages sent by the Public Institutions in order to inform the public.
v. The electronic messages sent by professional organisations with public status, public benefit organisations and foundations excluded from the taxes by the related laws.
4. The IYS and Obligations
The IYS established by the Amendment is a system providing service that receives commercial electronic message approval, operate the process of complaints and enable the use of rejection right.
Firstly, the Amendment imposes the obligation on the legal and natural person to who is applied by the Regulation and who wishes to send commercial electronic message, to register the IYS before sending commercial electronic message. It is forbidden to send commercial electronic message to those whose approval is not available in the IYS.
Additionally, in the case of disputes regarding whether the approval is given or not, the burden of proof is on the service providers with the responsibility that service providers register each person giving approval in the IYS within 3 working days. Therefore, the approval will be invalid where they are not registered.
5. The Approval
The approval can be obtained in 3 ways that are through electronic communication tools, written documents and the IYS. In the approval, the information must be clearly taken place as follows;
i. Declaration of intention clearly showing the consent for processing the personal data in the process of sending commercial electronic message
ii. Name and surname with electronic communication address
In the case of receiving approval through the IYS, the availability of declaration of intention and electronic communication address will be satisfied. On the other hand, in the case of receiving approval through electronic environment, the information of receipt of approval must be delivered within 24 hours with the option to reject.
For the voice call, trade name for merchants and name and surname for small retailer will be included. The article 6 of the Regulation determines the circumstances which the approval is not needed;
i. For the commercial electronic message sent to inform receiver about maintenance, changes and uses of the sold products, where the receiver gives its communication address to the service to communicate with the receiver himself,
ii. In the case of ongoing membership, where the message is sent for reminding debt, updating information, purchase or delivery or similar situations herein, (however in this message, any advertising or marketing for a product is forbidden),
iii. In the case that receiver is merchant or small retailer, (however for this message, if the merchant or small retailer use the rejection right, the message cannot be sent before getting approval),
iv. Under the law related capital market, the companies whose area are agency business are not necessary to obtain approval to inform its costumer through electronic messages.
It is amended in the article 6 with the Amendment that in the case of sending message under the scope of clause 1, 2, 4, control is not issued through the IYS. Also, the clause is amended in the article herein that sending message under the clause 3, the electronic address of the receiver who is merchant or small retainer is recorded into the IYS and the control is issued whether they use their rejection right or not.
6. The Rejection Rights
The rejection right that receivers can reject to receive commercial electronic message, has been long available. However, with the Regulation on Commercial Communication and Commercial Electronic Messages, the service providers must include their electronic address in the e mail they send to the receivers for the right given to receivers to reject. With the Amendment, receivers, if they wish, use the rejection right through the IYS. In this case, service providers must inform the IYS the rejections they obtain within 3 days.
7. The Sanctions
There is no change on practice of sanction with the Amendment. Therefore, the penalties regulated by the Law numbered 6563 will be in progress. In the case of any breach to obligations, under the article 12 of the Law numbered 6563, service providers will be fined from 2.092 TL to 20.953 TL for each message sent without approval of the receivers. This amount may be enhanced up to 10 times in the case that the message is sent to more than a person for once.
8. Important Deadlines
With the Amendment, the phrase “1 year” in the article 13 of the Regulation has been changed as “3 years” so that service providers can store the record of approvals for 3 years after the end of the valid time.
According to the (Amendment) Regulation, the service providers deliver the available approvals to the IYS by 1/6/2020. From this date, the receivers will wait the message sent by IYS. Upon the information by the IYS, they control their approval through the IYS and can use the rejection right until 1/09/2020 if they wish.
The Amendment has constituted the Message Management System (the IYS) and brought changes on the available regulation and practice with this system. It is supposed that the system will be helpful to manage the approvals, rejections and complaints. It can be said that it is much easier now for receivers to protect their personal data from service providers. Moreover, it is a thought that the changes may grow public awareness for the both side, service providers and receivers.
 The Law on the Establishment and Broadcast Service of Television and Radio numbered 6112, dated 15/02/2011 published on the Official Gazette numbered 27863, dated 03/03/2011
 The Law on the Regulation of Electronic Trade numbered 6563, dated 23/10/2014 published on the Official Gazette numbered 29166, dated 05/11/2014