• Electronic Contracting in Turkey
  • August 15, 2017
  • Introduction
    Electronic Commerce ("E-commerce") in Turkey is expanding rapidly corollary to the rapid growth of technology and use of the internet. According to the statics of the Information and Communication Technologies Authority (Bilgi Teknolojileri ve İletişim Kurumu), internet usage rose to 62.2 million in 2016, i.e. a 179 % increase in five years. Another statistic shows that E-commerce is worth approximately 8 billion Euros in 2016.1. Such approach has raised significant neccessity technical and legal regulations, as the contracting of the worldwide web raises questions about security, legal validity, compliance, data protection, etc. In such neccessity, current Law No. 6563 on the Regulation of Electronic Commerce ("E-Commerce Law") that was adopted to address such questions with an aim to harmonize with the European Union legislations2.
    This article discusses electronic contracting under the current E-Commerce Law, together with the draft regulations of the E-Commerce Law.
    Commercial Communication and Procedural Information
    Contracting by electronic means presents the difficulty to identify the other party of a contract, as well as raises questions concerning legal effectivenes and validity. Hence the E-Commerce Law mainly focused on the information requirements of the service providers3 as a party to the contract and requires that the service providers to clearly identify themselves by providing certain information to the receipent prior to the conclusion of a contract. Accordingly, service providers shall provide the following procedural information prior to the conclusion of a contract by means of electronic communication:
    * Up-to-date intrductory and accessible information regarding commercial communication;
    * Information on the technical steps to follow to conclude contracts;
    different technical steps to follow to conclude contracts;
    * Information on the technical means to identify, and correcting input errors prior to placing the order;
    * Information with respect to whether or not concluded contracts are to be stored by the service providers, and the accessibility of such contracts; and
    * Information on the applied confidentiality policies and alternative dispute resolution mechanisms, if any.
    In addition to the information requirements established by the E-Commerce Law, the draft regulation on Electronic Orders and Contracts ("Draft Regulation") stipulates extensive prior information requirements for a contract in order to ensure that the service provider shall render such information easily, directly, and to be permanently accessible to the receipents of the service. Prior information requirements refers to information that must be provided by a service provider prior to an order being placed by the recipient of the service.
    * Communication details of the service provider, including his/her electronic mail address;
    * Information as to where the service provider is registered in a trade registry or similar public registry (i.e. professonal chamber);
    * The trade registry registration number or equivalent means of identification with that registry (i.e. MERSIS Central Trade Registry Number or tax identification number; whichever is applicable), etc.
    Both the current E-Commerce law and the Draft Regulation aims to impose transparancy requirements with respect to commercial communications prior to the execution of the contract.
    In addition to the foregoing, the Draft Regulation further imposes additional information requirements where the service provider undertakes to state the price of the service(s) clearly and unambigouosly, together with any and all costs and expenses that may arise.
    Formation of the Contract
    According to the Turkish Code of Obligations, a contract is formed through the exchange of offers and acceptance. E-Commerce Law does not establish the time at which the contract must be considered to be concluded, nor does it determine when a service provider may be considered as having made an offer on the Internet. The Draft Regulation, on the other hand, sets out that the order and the acknowledgement of receipt shall be considered to be received when the parties to whom they are addressed are able to access the recipient which introduces a third step of contract formation - acknowledgement of receipt.
    The Draft Regulation further deals with the complaint handling policy where the consumer can address any complaints within 6 (six) months from the formation of the contract to the relevant provincial directorate of which the service provider is registered.
    Conclusion
    The rationale behind the E-Commerce Law and the Draft Regulation is to create legal certainty by validating electronic contracts. The Draft Regulation contains extensive information requirements prior to the conclusion of the contract, and a confirmation procedure for the formation of contract. As e-commerce in Turkey continues to expand, there will be need for additional regulations to protect consumers and create legal security, in addition to the current laws and regulations.
    2 Directive 2000/31/EC of June 8, 2000, on certain legal aspects of information society services, in particular electronic commerce, in the Internal.
    3 According to the E-Commerce Law the Service Provider defined as a natural or legal person providing electronic services.
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