COMMERCIAL ELECTRONIC MESSAGE AND MESSAGE MANAGEMENT SYSTEM
COMMERCIAL ELECTRONIC MESSAGE RULES
COMMERCIAL ELECTRONIC MESSAGE
Law No. 6563 entered into force in 2014 to determine the procedures and principles regarding electronic commerce (all kinds of economic and commercial activities for online translation without physical confrontation).
- Commercial Electronic Message: It is defined as data, voice and video messages that are sent for commercial purposes and transmitted electronically using means such as telephone, call centers, fax, automatic call machines, smart voice recording systems, electronic mail, short message service.
- Service Provider: It is defined as real or legal persons engaged in electronic commerce activities.
- Out of Scope Electronic Messages: Pursuant to Article 2 of the Regulation, the following messages are not covered by commercial electronic messages.
- Commercial electronic messages sent by the operators under the Electronic Communications Law to their subscribers and users exclusively to promote, market or promote their own goods and services.
- Messages sent by foundation universities to students and their parents
- Messages sent by professional organizations in the nature of public institutions, publicly beneficial associations and tax-exempt foundations to their members regarding the activities of their commercial enterprises
- In accordance with the provisions of the Law on Radio and Television Establishment and Broadcasting Services, information messages by radio and television broadcasting organizations regarding worn broadcast services in order to inform and educate the public
- Messages sent by the state, local administrations and other public entities to inform the public
THE OBLIGATION OF APPROVAL IN COMMERCIAL ELECTRONIC MESSAGES
In accordance with Article 6 of the Law No. 6563, commercial electronic messages can only be sent to the recipients with PREVIOUS APPROVAL.
The consent of the buyers can be obtained in writing or by any electronic communication means. The signature of the person who gave the approval is sought for the approval obtained in the physical environment. The electronically received approvals are forwarded to the recipient's electronic communication address within the same day.
A request for approval cannot be made by sending a commercial electronic message to the electronic communication address of the recipient.
If the approval is included in the content of a contract such as subscription, sales and membership agreement, it is received at the end of the contract, before the positive declaration of will or signature, with the possibility of rejecting it under the margin of the commercial electronic message, with a minimum of 12 pt.
The service provider can also use the approval it receives for promotional goods and services provided that it is together with its own goods or services.
The service provider cannot claim the consent of commercial electronic messages from the buyer as a prerequisite for the provision of goods and services it offers.
The approval given to one of the parties in the agency, specially authorized business, dealership agreement is deemed to be given for the other party of the contract, limited to the goods, services or brands subject to this contract.
The burden of proof that the approval has been obtained belongs to the service provider. A positive declaration of intent cannot be pre-selected in the confirmation text.
COMMERCIAL ELECTRONIC MESSAGES THAT CAN BE SENT WITHOUT APPROVAL
If the buyer provides her contact information for the purpose of communicating with her, no further approval is taken for commercial electronic messages for MODIFICATION, USE and MAINTENANCE regarding the goods or services provided.
Commercial electronic messages may be sent to the ESNAF and TRADERS without prior approval. However, if the buyer traders and tradesmen exercise their right to decline, the message cannot be sent without their further approval.
In the case of messages containing notifications regarding ongoing subscription, membership or partnership status, collection, debt reminder, information update, purchase and delivery or similar situations, and the obligation to inform the service provider under the relevant legislation, prior approval is not obtained.
In accordance with the legislation on the capital market, approval is not taken for commercial electronic messages sent by companies engaged in intermediation activities for informing their customers.
CONTENT OF THE COMMERCIAL ELECTRONIC MESSAGE
The content of the commercial electronic message must comply with the approval received from the recipient.
In the content of the message, the information that enables the service provider to be identified (MERSİS, TITLE, BRAND, BUSINESS NAME), depending on the type of communication, the contact information such as telephone number, fax number, short message number, e-mail address, rejection channel and depending on the type of communication It should include information about its subject, purpose and, if done on behalf of someone else, on whose behalf.
BUYER'S RIGHT TO REFUSE COMMERCIAL ELECTRONIC MESSAGE
Buyers may refuse to receive commercial electronic messages at any time, without stating any justification. The rejection notice overrides the consent.
The service provider is obliged to ensure that the refusal notification is transmitted easily and free of charge via electronic communication means and provide the necessary information in the message it sends.
In the electronic message, the recipient must provide an accessible contact address, such as a customer service number, text message number, or a URL address specific to the rejection notification.
The possibility of rejection is included in every commercial electronic message sent.
The service provider has to stop sending electronic messages to the recipient within 3 (three) business days following the receipt of the request. The rejection notification does not prevent the service provider from making the notifications that are mandatory to send to the buyer as per the relevant legislation.
In the event that the service provider violates the obligations contained in the law numbered 6563, it may be subject to a fine from 1.000.00 TL to 20.000.00 TL depending on the nature of the violation. Fines will be imposed by the Ministry of Commerce or the Provincial Directorates of the Ministry of Commerce.
COMMERCIAL ELECTRONIC MESSAGE MANAGEMENT SYSTEM (IMS)
MESSAGE MANAGEMENT SYSTEM (IMS)
In accordance with paragraph 11/4 of Law No. 6563, the Ministry has been obliged to establish or have an electronic system enabling the use of commercial electronic message approvals and the right to refuse.
Pursuant to the Regulation, IYS will be used for recording approval and rejection information of commercial electronic messages, obtaining approval via IYS, exercising the right to refuse, receiving and reporting commercial electronic message complaints, and managing the complaint process quickly and effectively.
The approvals received from buyers by service providers will be transferred to this system. Approvals not transferred to the system will be deemed invalid.
Service providers will not send electronic messages through the IYS. Only processes regarding obtaining approvals and exercising the right to refuse will be managed through this system
USE OF EXISTING DATABASES
In accordance with the Provisional Article 1 of the Regulation, the approvals containing the buyer's express declaration of will for the purpose of sending commercial electronic messages before 15.07.2015, when it entered into force, were deemed valid.
This law entered into force on 01.05.2015 in accordance with Article 15 of the Law No. 6563. In accordance with the Provisional Article 1 of the Regulation, it has been accepted that the databases created by the buyer giving the electronic contact address during the transactions between the service provider and the buyer before 01.05.2015 directly for the provision of goods or services are approved.
MESSAGE MANAGEMENT SYSTEM (IMS) APPLICATION AND APPLICATION SCHEDULE
The IMS system can be accessed from the website www.iys.org.tr and applications are made. With the amendment regulation published on 04.01.2020, service providers are obliged to transfer the approvals they have received for commercial electronic messages or the databases deemed to have been approved, to the IMS until 01.06.2020.
However, due to Covid-19, this period was postponed to 31.08.2020 with the statement made on 23.05.2020. Service providers will upload all the approvals they have received for commercial electronic messages to the IMS until 31.08.2020.
At the end of this period, a message is sent by the IYS to the recipients stating that their approvals will be deemed valid if their approvals are uploaded to the IYS and not checked until 01.09.2020, and that they can use the rejection option via the IMS. However, due to Covid-19, this period was postponed to December 2020 with the statement made on 23.05.2020.
Commercial electronic messages sent after the end of this period granted to the recipients will be deemed approved.
COMMERCIAL ELECTRONIC MESSAGE AND THE RELATION OF PERSONAL DATA PROTECTION
PROTECTION OF PERSONAL DATA
Pursuant to Article 10 of Law No. 6563, the service provider and intermediary service provider are responsible for the STORAGE and SECURITY of personal data and cannot transmit it to third parties and use it for other purposes without the consent of the person concerned.
In accordance with Article 12 of the Regulation, the service provider and intermediary service provider and TOBB are responsible for the preservation of the personal data they obtain and for taking the necessary measures to prevent them from being accessed and processed illegally. In order for personal data to be shared with third parties, processed and used for other purposes, prior approval must be obtained from the relevant person.
In accordance with the Law on the Protection of Personal Data (KVKK) numbered 6698, all kinds of data that identify natural persons or make them identifiable are defined as personal data. Marketing, Advertising, Promotion, etc., and the processing, use and transfer of personal data are subject to the "Explicit Consent" of the relevant natural person.
If commercial electronic messages sent within the scope of Law No. 6563 are sent to personal data belonging to REAL PERSONS (electronic mail, mobile phone number, etc.), it will definitely be necessary to evaluate the issue in terms of KVKK.
Otherwise, sanctions for breach of both KVKK and commercial electronic message legislation may be encountered separately.
The commercial electronic message database you upload to the IMS system will be notified to the relevant recipients by the IMS. If the right to RETURN the database is not used by the buyers until December 2020, it will be deemed to be CONSENT. This implied consent will protect you only in terms of commercial electronic communications legislation.
In accordance with the KVKK, it is compulsory to obtain EXPRESS CONSENT for commercial electronic messages to be sent to real persons for the purpose of sales, marketing, advertising and promotion, and IMPLIED CONSENT will not be sufficient. Therefore, keeping the receiver silent within the scope of the IMS system will not protect you in terms of KVKK legislation.
For this reason, if you have the opportunity, we recommend that you make your "commercial electronic messages" compliant with the legislation as per the KVKK legislation and Commercial Electronic Message legislation until 31.08.2020, obtain express consent of your database until this date, and upload your explicit consent database to the IMS system. In this way, you may have completed both KVKK and IMS transactions in one go.
The data owner natural person can withdraw the use of all personal data obtained with explicit consent in accordance with the KVKK at any time. In fact, this commercial electronic message legislation also provides the right to REJECT, providing integrity with the KVKK.
- 29 June 2020 Monday