Electronic Contracts November 21, 2018 – Posted in: Blog

E-Contracts in Turkey

Electronic commerce is a rapidly expanding sector of the economy in Turkey. According to a report of the Turkish Association of Informatics Industrialists (TUBISAD), the market size for e-commerce in Turkey grew 37% in the period 2016-17, from 30.8 to 42.2 billion Turkish Lira[1].

Contrary to traditional contracts, e-contracts are made exclusively online, usually through the portal or website of the merchant or a third-party service provider. Common applications include online retail stores and travel and vacation booking sites. However, e-contracts are based on many of the usual concepts found in provisions governing traditional contracts, namely the Turkish Law of Obligations (TBK). According to article 1 TBK, a contract is established with the mutual and concordant expression of the will to be bound by the parties, which can be explicit or implicit. The e-commerce framework in Turkey expands upon this basic scheme with specific provisions taking into account the special nature of e-contracts.

The Turkish Law on E-Commerce (ETK) no. 6563, which entered into force on 1 May 2015, brings new obligations to service providers specific to e-contracts. This Law is supplemented by the Regulation on Service Providers and Intermediaries in E-Commerce no. 29457 of 26 August 2015 (“the Regulation”). The most significant obligation is the obligation to inform. This pertains to various stages of the e-commerce process, and can be divided into the following parts:

  1. Pre-Contractual Obligations: the service provider must present,
    1. Up-to-date introductory information in an easily accessible and clear way;
    2. Information on the technical steps to be followed for the formation of the contract;
    3. Whether the contract will be stored by the service provider after its formation, and whether the buyer will be able to access it afterward, and for how long;
    4. Clear information relating to the technical tools for the identification and correction of errors in the entry of data;
    5. Applicable privacy rules and alternative dispute resolution mechanisms (if any);
    6. Contact information, including the email address, of the service provider;
    7. Information on the trade registry or other official registry or professional association membership records of the service provider; and
    8. Trade registry number or equivalent identifying information (e.g. MERSIS[2] or tax number).

In case both parties are merchants (not consumers), these provisions can be negotiated or canceled out by the parties. The service provider must furthermore enable the storage of the contract and standard terms of service by the buyer.

A central aspect of e-commerce is the placing of orders on online stores. There are various rules that service providers must follow when receiving orders.

  1. Obligations relating to orders:
    1. The service provider must clearly display the terms of the contract before the order is confirmed and payment information is entered, including the total amount to be paid by the buyer;
    2. Confirmations of orders must be transmitted to the buyer by the service provider without delay;
    3. The order and the receipt of its confirmation shall come into force at the moment that the parties are able to access said information; and
    4. The service provider must give the buyer an opportunity to correct errors in data entry before the order is placed in an appropriate and accessible manner.

Similarly, parties that are merchants can agree with terms contrary to those stated above.

Commercial communications, including discounts, promotions, gifts and contests/games with prizes, may be sent to buyers provided that the sender of such communications (natural or legal person) is clearly identifiable. The terms of the aforementioned contests and games must be clearly presented in an easily accessible way.

  1. Obligations relating to commercial communications:
    1. Commercial communications can only be sent to buyers with their prior consent. Consent may be obtained in writing or through any kind of electronic communication tool. This consent also covers communications containing information on the replacement, usage, and maintenance of the goods and services provided.
    2. The content of the communications must be appropriate to the consent given by the buyer.
    3. Communications must include the contact information of the service provider, as well as information on what the communication is about.

Merchants can be sent electronic commercial communications without prior consent. Buyers (consumers) can at any time, without reason, refuse to receive commercial communications. The service provider must cease sending communications within three days of receipt of the termination notice, which must be freely available to consumers to fill in and send.

Service providers also have an obligation to store and ensure the security of personal data collected in the course of e-commerce. The service provider must store personal data for three years from the date of the transaction. This personal data cannot be transferred to third parties and used for other purposes without the explicit consent of the data subject (owner).

Consumers can make an electronic or written complaint to the Ministry of Trade. The service provider is obligated to provide the documents requested by the Ministry within 15 days. The Ministry furthermore has the competence to carry out inspections regarding the operations of service providers, including examinations of documents, records, and commercial registers. Service providers are obligated to cooperate with and assist truthfully officials carrying out such duties.

The Law on E-Commerce sets forth a number of fines for non-compliance with its provisions. These administrative fines include:

  • 1.000-5.000 TL for service providers and intermediaries violating the obligations set out in articles 3, 4(1)(a), 6(1) and 7(1) ( pertaining to information, orders and commercial communications);
  • 1.000-10.000 TL for service providers and intermediaries violating the obligations set out in articles 4(1)(b), 4(2), 5(1)(a), 7(2) and 7(3) (pertaining to order confirmation, correction of erroneous data, identification of senders of commercial communications, and content of such communications);
  • 2.000-15.000 TL for service providers and intermediaries violating the obligations set out in articles 5(b), 8(2) and 8(3) (on discounts and promotions and termination notices for commercial communications);
  • 2.000-5.000 TL for those violating article 11(2) (the obligation to cooperate with Ministry officials conducting inspections);
  • 5.000-20.000 TL for natural and legal persons violating article 11(3) (the obligation to provide information to the Ministry when requested, for the purpose of monitoring and evaluation of the development of e-commerce); and
  • 10.000-100.000 TL for multiple commercial communications sent in violation of article 6(1) regarding prior consent.

[1] TUBISAD, Turkiye’de E-Ticaret, May 2018.

[2] Central Registry System.