Within the scope of the Regulation On Amendment of the Regulation on Commercial Communication and Commercial Electronic Messages (“Amendment Regulation”) published at the Official Gazette on 04.01.2020, certain important amendments have been made on the Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation”). This newsletter describes the new and important regulations introduced by the Amendment Regulation.

A. Amendments Made In the Regulation

  • First of all, the following new terms have been added to Article 4 of the Regulation that is related to definitions, in accordance with the other amendments made in other provisions of the Regulation and new regulations introduced:

o Commercial Electronic Message Management System (IYS): A system that allows the approval of commercial electronic messages, the use of the right to reject and the management of complaint processes;

o Organization: The organization authorized by the Ministry to establish the commercial electronic message management system;

o IYS number: A unique number assigned separately to all service providers and brands registered to IYS.

The amendments made in Article 4 of the Regulation entered into force on 04.01.2020 which is the date of publication of the Amendment Regulation.

  • Article 5 of the Regulation has been amended as follows:

o ARTICLE 5 – (1) For the commercial electronic messages sent by the service provider to the electronic communication addresses of the recipients in order to promote and market their products and services, to promote their business or to increase their recognition by using contents related to celebration and wish etc., the service provider shall obtain prior consent of the recipients by itself or via IYS. Consent is valid until the right of rejection is used.

(2) Real and legal persons that intend to send commercial electronic messages shall be registered to IYS.

(3) Commercial electronic messages cannot be sent to recipients whose consents are not available on IYS.

Within the scope of the amendment, in addition to options of obtaining written consent and obtaining consent via electronic media such as e-mail etc., the option to provide consent via IYS has been introduced in order to allow the recipients to provide their consent for receiving commercial electronic messages. However, as will be explained below, the consents obtained in writing or in electronic environment, which are not obtained through IYS, within the scope of the previous version of the Regulation, should also be registered by the service provider to IYS. In this regard, the main purpose is to ensure that the service providers register the previous consents to IYS and continue to obtain the consents through IYS or register such consents to IYS, regardless of the platform on which they have been taken from. Likewise, the third paragraph added to Article 5 states that commercial electronic messages cannot be sent to the recipients whose consents are not available on IYS.

The amendments made to Article 5 of the Regulation will enter into force on 01.09.2020.

  • The following red paragraphs have been added to the end of Article 6 of the Regulation which regulates the cases that do not require consent to send commercial electronic messages; in this regard, Article 6 of the Regulation has been amended as follows:

“ARTICLE 6 – (1) In case the recipient provides his/her contact information in order to allow the service provider to contact him/her, no separate consent is required for commercial electronic messages regarding the changes to, use and maintenance of the goods or services provided.

(2) In cases of ongoing subscription, membership or partnership status, and notifications regarding collection, debt reminder, information update, purchase and delivery or similar conditions, and obligation to provide information to the service provider in accordance with the relevant legislation, no prior consent is required. However, no goods or services may be encouraged or promoted in such notifications.

(3) It is not obligatory to obtain prior consent for commercial electronic messages to be sent to the electronic communication addresses of the recipients who are merchants or tradesmen. However, if the merchants and tradesmen exercise the right of rejection mentioned in Article 9, commercial electronic messages cannot be sent without their consent.

(4) Pursuant to the capital market legislation, it is not obligatory to obtain approval for commercial electronic messages sent to the customers for information purposes by the intermediary companies.

(5) In case messages are sent within the scope of the first, second and fourth paragraphs, no control shall be made through the IYS.

(6) Before the message is sent under the third paragraph, the electronic communication addresses of the recipients who are merchants or tradesmen shall be registered to IYS by the service provider and checked whether the recipients exercise their right of rejection through IYS.”

Within the scope of the amendment; there is no obligation to check from IYS whether the recipient has provided consent, before sending the following commercial electronic messages: (i) commercial electronic messages sent related to changes, use and maintenance activities on the goods and services provided; (ii) commercial electronic messages sent for specific purposes, such as collections, debt reminders etc. in the event of ongoing subscription, membership or partnership and (iii) commercial electronic messages sent by companies, who perform brokerage activities in accordance with the legislation on capital markets, for information purposes. Therefore, as before, there is no requirement to obtain consent in order to send these commercial electronic messages.

However, with regards to commercial electronic messages sent to merchants and tradesmen, an additional liability has been introduced as follows; even though the consent requirement is not sought, it is regulated that the contact addresses of these persons shall be registered to IYS and the service providers shall check whether the right of rejection is used by the recipients through IYS.

The amendments made to Article 6 of the Regulation will enter into force on 01.09.2020.

  • Article 7 of the Regulation is amended as follows:

“ARTICLE 7 – (1) Consent may be obtained in writing or by any means of electronic communication devices or through IYS. Consent shall include the recipient’s acceptance of the consent of receiving commercial electronic messages with a positive will, name, surname and electronic communication address of the recipient.

(2) In the consent obtained in physical environment, the signature of the person providing consent is required.

(3) In case the consent is obtained in electronic environment, the information showing that the consent has been received shall be sent to the recipient’s electronic communication address within 24 hours on the same day, by providing the option to reject receiving commercial electronic messages.

In the consents obtained through IYS, positive will statement and electronic communication address shall be stated.

The provisions of this paragraph shall not apply to consents received through IYS.

…

(10) With regards to the consents that have not been obtained through IYS, the obligation to prove that the consent has been received shall belong to the service provider.

(11) Consents that are not obtained through IYS shall be registered to IYS by the service provider in three business days.

(12) Consents that are not registered on IYS shall be deemed invalid. ”

Amendments to this article are highly critical because; (i) consent related to commercial electronic message that is provided through any medium other than IYS, must be recorded by the service provider to IYS within three business days; (ii) consents that are not registered to IYS shall be invalid; (iii) even if the consent is registered to IYS, the obligation to prove that the consent has been obtained shall remain with the seller or service provider if the consent has not been obtained through IYS however, (iv) if the consent has been received via IYS, it is not necessary to send the information to recipient’s electronic communication address regarding the fact that the consent has been obtained and in such case, (v) the service provider shall not be obliged to prove that it has obtained consent of the recipient (the conclusion to be drawn here is that if the recipient claims that he/she has not provided consent although he/she has provided consent through IYS, the recipient will be obliged to prove his/her claim).

Amendments to Article 7 of the Regulation will enter into force on 01.09.2020.

  • Article 8 of the Regulation is amended as follows:

“Article 8 – (1) The content of commercial electronic messages must be in accordance with the consent obtained from the recipient.

(2) Central Registration System number and trade name of merchants, name and surname and T.R. or tax identification number of tradesmen shall be included in the title or content of the commercial electronic message. In addition, the service provider may include other identifying information, such as brand or business name.

(3) Central Registration System number of merchants, and T.R. or tax identification number of tradesmen shall included in the content of commercial electronic messages that are sent by using limited areas such as text messages. In addition, the service provider may include other identifying information, such as brand or business name.

(4) Trade names of merchants, and name and surname of tradesmen shall be included in the voice call content. In addition, the service provider may include other identifying information such as the brand or business name.”

This amendment to Article 8 of the Regulation entered into force on 04.01.2020 which is the date of publication of the Amendment Regulation.

  • Article 9 of the Regulation is amended as follows:

“ARTICLE 9 – (1) Recipient may reject to receive commercial electronic messages at any time without giving any reason. The recipient’s notification of rejection invalidates the consent related to the communication channel on which the notification is made.

(2) The rejection notification to be made to one of the parties for the consent given under the sixth paragraph of Article 7 shall be deemed to have been made to all parties. The party receiving the rejection notification is obliged to inform the other party.

(3) The service provider shall include in the commercial electronic message, the accessible contact address, such as the customer service number, short message number, or a URL address specific to the rejection notification, provided by the service provider or IYS, so that the recipient can make a rejection notification. The service provider must provide the customer’s contact number in the commercial electronic message for notification of rejection, such as a customer service number, short message number, or a URL address that is specific to rejection notification only. The commercial communication is sent via the same communication channel, on which the commercial electronic message is sent, in an easy manner and free of charge.

(4) The option to send rejection notification shall be included in every commercial electronic message sent.

(5) Exercise of the right of rejection by the recipient shall not prevent sending of obligatory notifications to

the recipient in accordance with the provisions of the relevant legislation to which the service provider is subject.

(6) The service provider shall notify IYS of the rejection notifications sent to service provider within three business days.

(7) The recipient may also use his/her right of rejection through IYS.”

The amendments made in this article are the amendments that have been applied with regards to right to reject to receive commercial electronic messages through the system of IYS. In this context; (i) each commercial electronic message sent to the recipient shall include contact information of the service provider or alternatively, IYS’s customer service information to be used for exercise of right of rejection; (ii) if recipients exercise their rights of rejection, such rejection notices shall also be registered to IYS by the service provider; (iii) the recipient may, in any case, exercise the right of rejection through IYS. In the event that the recipient uses his/her right of rejection via IYS, we are of the opinion that the rejection notification will not be required to be registered also on IYS.

The amendment made to Article 9 of the Regulation will come into force on 01.09.2020.

  • The following Article 10/A has been added following Article 10 of the Regulation:

“ARTICLE 10/ A – (1) For the purpose of registration of consent and rejection information to IYS, obtaining consent through IYS, exercising the right of rejection, receiving and reporting complaints on commercial electronic message, managing the complaint process quickly and effectively and allowing intermediary service providers to use the system, the Organization shall prepare the technical infrastructure and make it accessible by the Ministry.

(2) The Organization shall take the necessary technical measures in order to prevent disruption of transmission of commercial electronic messages.

(3) The Organization is obliged to carry out other works and transactions requested by the Ministry in relation to IYS.”

This article is related to the preparation of the system named IYS by the Organization to be assigned by the Ministry and enabling thereof for access. In accordance with the transitional clause “Provisional Article 2”, the service providers are required to upload their existing databases to the IYS by 01.06.2020. Therefore, IYS is expected to be established until that date.

The above Article 10/A entered into force on 04.01.2020, which is the date of publication of the Amendment Regulation.

  • Article 11 of the Regulation is amended as follows along with its heading:

“Obligations and other matters relating to intermediary service providers

ARTICLE 11 – (1) The service provider may send commercial electronic messages to the recipients from whom the service provider has previously obtained consent, by itself or through intermediary service providers.

(2) Intermediary service provider;

a) Sends the contents prepared by the service provider.

b) Provides the software, hardware, database and management system necessary for the creation, sending, receiving, storing of the commercial electronic message and for the storage and processing of the information of the recipients.

c) Provides the opportunity for the fulfillment of other obligations envisaged for the service provider in this Regulation.

(3) The intermediary service provider shall include at least one of its brand name, trade name or business name in the content of commercial electronic messages sent.

(2) The intermediary service provider shall provide the technical means for the fulfillment of the obligations stipulated for the service provider under this Regulation.

(3) The intermediary service provider is not obliged to control the content provided by real and legal persons who use the electronic environment in which it provides services, and to investigate whether there is an unlawful activity or situation regarding this content and the goods or services subject to this content.

(4) The intermediary service provider may not obtain consent to send commercial electronic messages on behalf of others to promote and market their goods and services or to promote their business.

(5) The intermediary service provider shall align its commercial electronic message transmission system with IYS.

(6) The intermediary service provider shall not initiate the transmission of commercial electronic messages of service providers that are not registered on IYS.

(7) In accordance with the instruction of the service provider, the intermediary service provider, which initiates the commercial electronic message transmission, shall check whether the consent of the recipients are available on IYS before it starts sending the message and it shall not initiate sending of messages to the recipients whose consents are not available on IYS.

(8) If the service provider wishes to send messages within the scope of the first, second and fourth paragraphs of Article 6, the intermediary service provider shall receive such declaration.

(9) The intermediary service provider shall notify IYS if the recipients close their subscription line.”

In the context of the amendments to this article, if the service provider receives support from an intermediary service provider for commercial electronic message transmission, the additional obligations of the intermediary service providers to be covered by IYS system are mentioned.

The amendment to Article 11 of the Regulation will enter into force on 01.09.2020.

  • The first paragraph of Article 12 of the Regulation is amended as follows:

“ARTICLE 12 – (1) The service provider and intermediary service provider and the Organization shall ensure that the data obtained due to the transactions and services rendered within the framework of this Regulation are stored and take necessary measures to prevent unlawful access to such data and unlawful processing of such data, without prejudice to the provisions of the relevant legislation.”

This amendment to Article 12 of the Regulation entered into force on 04.01.2020, which is the date of publication of the Amendment Regulation.

  • Article 13 of the Regulation on the obligation to prove and the period of retention of records is amended as follows:

“ARTICLE 13 – (1) The obligation to prove shall pertain to the service provider and/or the intermediary service provider in the transactions subject to the complaint.

(2) The service provider and/or intermediary service provider shall keep the consent records for a period of one year three years from the date on which the validity of the consent expires, and it shall keep other records related to commercial electronic messages for one year three years as of the date of record. If requested, these records shall be submitted to the Ministry.

Within the scope of this amendment, consent records for commercial electronic messages will need to be stored for three years from the date on which the consent becomes invalid (i.e. as of the date on which the recipient has used right of rejection), and other records (e.g. rejection notice) will be stored for three years from the date of registration.

This amendment to Article 13 of the Regulation entered into force on 04.01.2020, which is the date of publication of the Amendment Regulation.

* Article 14 of the Regulation is amended as follows:

“Complaint

ARTICLE 14 – (1) Complaint applications may be made electronically via e-Government gate, IYS or the website of the Ministry or in writing to the provincial directorate where the complainant’s residence is located. If the complainant is a real person, his/her name and surname, signature and residence address, and if the complainant is a legal person, its trade name and address and the name, surname and signature of the person authorized to represent such legal person or the legal representative must be included in the application;

(2) The following matters shall be included in applications related to complaints regarding commercial electronic messages:

a) if sent via text message; the complainant’s T.R. identification number, telephone number, the name of the GSM operator to which he/she is subscribed, the number of the sender of the message, in the absence of this number, the alphanumeric information such as the brand and business name, the date and time of sending of the message, a visual instance of the message and the MERSIS number in case the complainant is a merchant, and the statement indicating this situation in case the complainant is a tradesmen.

b) if sent by e-mail; the complainant’s T.R. identification number, e-mail address, the name of the enterprise providing electronic mail service to the complainant, the e-mail address of the sender, the sending date, time and content of the message, and the MERSIS number in case the complainant is a merchant, and a statement stating this situation if the complainant is a tradesmen. A visual instance of the message shall be attached to the application.

c) if sent by voice call; the complainant’s T.R. identification number, telephone number, name of the GSM or fixed line operator to which he/she is subscribed, number of the sender of the message, if this number cannot be received, brand and business name, date, time and subject of the message being sent and MERSIS number in case the complainant is a merchant, and a statement stating this situation if the complainant is a tradesmen.”

The amendments to this article are related to procedures for the recipient to exercise his/her right to complain.

The amendment to Article 14 of the Regulation entered into force on 04.01.2020, which is the date of publication of the Amendment Regulation.

  • Article 15 of the Regulation is amended as follows:

ARTICLE 15 – (1) If the provincial directorate, to which the application is made, determines that the service provider subject to complaint has its registered center in another province, the application documents shall be sent to the relevant provincial directorate and the applicant shall be informed.

(2) The application shall become subject to preliminary examination through IYS. After the preliminary examination, the relevant information and documents shall be obtained from the person concerned by the provincial directorate and the complaint shall be concluded. However, on-site inspection shall be carried out by the personnel assigned by the provincial directorate for inspection when necessary.

(3) The service provider and the intermediary service provider are obliged to submit the information and documents requested by the provincial directorate about the relevant complaint within fifteen days from the notification of this request. If necessary, this period may be extended by the provincial directorate at most once for fifteen days upon the request of the person concerned. In the event that the requested information and documents are not submitted at the end of this period, administrative procedures shall be established on the information and documents submitted to the provincial directorate during the application of complaint. In the letter of the provincial directorate regarding the request for information and documents, it shall be stated that if the requested information and documents are not delivered within the relevant period, administrative proceedings shall be established through the information and documents submitted to the provincial directorate during the application of complaint.

(4) Provincial directorate may request information and documents from the relevant public institutions and organizations and operators providing electronic communication services, in cases where it is not possible to identify the service provider or intermediary service provider directly.

(5) In accordance with the instruction of the service provider, the intermediary service provider who initiates the sending of the message shall reply to the information and document requests related to the complaint applications within fifteen days via IYS.”

The amendments to this article reflect the changes in the audit procedure to be performed by the service provider upon complaint, as the IYS becomes operational.

The amendment to Article 15 of the Regulation will enter into force on 01.09.2020.

  • The first paragraph of Article 16 of the Regulation is amended as follows:

“Article 16 – (1) The Ministry is authorized to supervise the activities and transactions of the service provider, intermediary service provider and the Organization within the scope of this Regulation.”

The amendment made to Article 16 of the Regulation entered into force on 04.01.2020, which is the date of publication of the Amendment Regulation.

  • The following Article 17/A has been added to the Regulation:

“Commercial electronic messages via electronic mail

ARTICLE 17/A – (1) The provisions of the fifth, sixth, seventh and eighth paragraphs of Article 11 and the fifth paragraph of Article 15 shall not apply to commercial electronic messages sent via electronic mail.”

Article 17/A of the Regulation shall enter into force on 01.09.2020.

  • The following Provisional Article 2 has been added to the Regulation:

“Uploading existing databases to IYS

PROVISIONAL ARTICLE 2 – (1) Consents that have been obtained as per this Regulation shall be uploaded to IYS by service providers until 1/6/2020. At the end of this period, a message will be sent by IYS to the recipients informing them that the consents have been uploaded to IYS and if they are not checked until 1/9/2020, these consents will be considered valid and that the possibility of rejection can be used through IYS.

(2) Recipients shall check the consents recorded on IYS until 1/9/2020. Commercial electronic messages sent after the expiry of this period shall be deemed approved.

(3) The Ministry is authorized to postpone these dates for three months. ”

Within the scope of this article, service providers are obliged to transfer to IYS all the consents obtained from the recipients until the date of publication of the Amendment Regulation until 01.06.2020. Since IYS has not been established yet, this process cannot be started at the moment, but since 01.06.2020 is not a very distant date, we expect IYS to be established soon.

After service providers register these consents to IYS, they will also need to send a notification to the relevant recipients stating that they must check their approvals through IYS and that they can use their rejection rights through IYS. After 01.09.2020, consents, for which the recipient has not exercised the right of rejection via IYS, will be deemed valid. If the recipient exercises his/her right of rejection, the transmission of commercial electronic messages to the recipient must be stopped within three days of the date of rejection.

Since the provisions of the repealed Regulation will be in effect until 01.09.2020, service providers may continue to send commercial electronic messages to the previously approved persons in accordance with the legislation.

The amendment made in the Provisional Article 2 of the Regulation entered into force on 04.01.2020, which is the date of publication of the Amendment Regulation.

B. Overall Assessment

The amendments made to the Regulation are fundamental, and it is aimed that commercial electronic message consents can be recorded and tracked within a system and the recipients can use their right of rejection through a single system.

On the other hand, this system can also be useful for service providers, since there is no longer an obligation to provide evidence on the service provider in terms of consents received through IYS, because, if the recipient claims that commercial electronic messages are sent without his/her consent despite that he/she has provided consent through IYS, the recipient is obliged to prove that he/she no longer consents to sending of commercial electronic message.

As IYS has not yet been established, it is currently not possible to meet the obligations related to IYS. Following the establishment of IYS, the procedures for uploading the existing databases to IYS will have to be initiated as soon as possible.