Memorandum Regarding Liability To Register On Message Management System Regarding Commercial Messages (“Iys”)
As per the Regulation Regarding Amendment of Regulation Regarding Commercial Communication and Commercial Electronic Messages that has been announced in the Official Gazette dated 04.01.2020, certain important changes have been made with regards to the Regulation Regarding Commercial Communication and Commercial Electronic Messages (“Regulation”).
The most important ones among these changes are establishment of the system called IYS1 where the consents obtained from the recipients for sending commercial electronic messages and their communication addresses shall be registered and introduction of the liability to register on IYS and to obtain the new consents through IYS for the service providers. In this regard;
a. Consents regarding commercial electronic messages that have been obtained in accordance with the Regulation until today should be registered on IYS until 01.06.2020. In addition, a notice should be sent to the relevant recipients stating that they should check their consents on IYS and they may use their rejection rights on IYS.
b. In cases where no consent is required for sending commercial electronic messages as per article 6 of the Regulation2 , commercial communication addresses of the recipients must be registered on IYS. This amendment made in the Regulation shall enter into force on 01.09.2020. Therefore, we believe that with regards to cases where no consent is required for sending commercial electronic messages (e.g. messages sent to merchants), it will be sufficient to register communication addresses of such recipients on IYS until 01.09.2020 however since the wording of the Regulation regarding this subject is not very clear, it will be appropriate to register communication addresses of such recipients on IYS until 01.06.2020, if possible.
c. Furthermore, as of 01.09.2020, consents required for sending commercial electronic messages may be obtained through IYS as well and in case the consent is not obtained through IYS, such consent will be required to be registered on IYS. If the consent is not registered on IYS, burden of proof regarding the consent obtained from the recipient shall be at the service provider. In addition, although it is not necessary to obtain consent from the recipients who are merchants and artisans, electronic communication addresses of such recipients will be required to registered on IYS. The recipients will be able to exercise their right of rejection through IYS and the service provider will be liable to check whether or not the recipients have used their rejection rights on IYS, register the notices of rejections sent to the service provider by different means on IYS and cease sending of commercial electronic messages to the recipient who has used the right of rejection within 3 business days.
After the consents of recipients are registered on IYS and a notice stating that they may use their right of rejection through IYS is sent to the recipients as per paragraph (a) above, if the recipients do not use their right of rejection until 01.09.2020, consents registered on IYS shall be deemed valid. Thereafter, if the recipient claims that he/she has not consented to receive commercial electronic messages, the recipient will be liable to prove such claim.
If the above mentioned liabilities are not fulfilled, administrative fine may be applied as per article 12 of the Law on Regulation of Electronic Commerce and there may be a risk that the consents that have been previously obtained are deemed invalid.
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