13 January 2020

The Regulation Amending the Regulation on the Commercial Communications and Commercial Electronic Messages (“Regulation”) has been published in the Official Gazette dated 4 January 2020 and numbered 30998. The purpose of the Regulation on the Commercial Communications and Commercial Electronic Messages published in the Official Gazette dated 15 July 2015 and numbered 29417 was to regulate the obligation to provide information regarding the commercial communication performed through electronic communication tools and the procedures and principles that need to be complied in commercial electronic messages.

“Commercial electronic message”; means the messages containing data, audio and visual image that are realized on electronic media and sent for commercial purposes, through instruments such as telephone, call centres, fax machine, automatic dialling machine, smart audio recording systems, electronic mail, short message service. The amendments implemented by the Regulation are briefly as follows:

1) Obligation to Register with the Commercial Electronic Messages Management System (“IYS”)

First of all, in addition to the service provider’s (real or legal persons operating in electronic commerce) obligation to obtain confirmation for sending electronic messages to recipients’ (consumers or real or legal persons acting professionally or for other purposes) electronic communication address in order to promote and market its goods and services, promote its business or to increase its recognition through content such as celebration and well-wishing, the Regulation has implemented the obligation to register with the IYS.

Whilst IYS introduces a new platform for the recipients to use their right of confirmation or rejection with respect to commercial messages and to submit their complaints regarding such rights, it implements an obligation for the service provider to register confirmation and rejection statements from the recipients, to respond to information and documentation requests from the recipients regarding the complaints within fifteen (15) days on IYS and in this way implements an obligation that paves the way for a firm supervision of sending commercial messages.

Confirmation of the recipients should be obtained for sending commercial electronic messages to recipients. Such confirmation can be obtained in writing as well as through any electronic communication tool and with the new regulation it can also be obtained through IYS. Confirmations that were not obtained through IYS are to be submitted by the service provider to the IYS within three (3) business days and the burden of proof of confirmations that were not obtained through IYS being duly obtained shall lie with the service provider. Confirmations that are not recorded on IYS shall be rendered invalid. In cases where recipients grant their confirmation through IYS, service provider is not required to make any further submission.

2) Deadline for IYS Registration

The service provider is required to register the confirmations to the IYS by 1 June 2020. At the end of this period, a message is sent to the recipients by the IYS which states that their confirmation has been uploaded to the IYS and, if not checked by 1 September 2020, these confirmations shall be deemed valid and the option of rejection is available through the IYS. The recipients must accordingly check the confirmations entered in their name by 1 September 2020. Commercial messages sent after the expiration of this period are considered to be confirmed. However, the recipients are always authorized to take back their confirmations through the IYS. The Ministry of Commerce is authorized to postpone the aforementioned dates for three (3) months.

3) Obligations of an Intermediary Service Provider

In addition to above, with the Regulation the obligations of “the intermediary service provider” that sends commercial messages on behalf of the service provider are brought into conformity with the IYS that will be put into effect. According to this new regulation the intermediary service provider:

  • is obliged to harmonise its system for the sending of commercial electronic message with the IYS,
  • cannot initiate the sending of commercial electronic messages belonging to service providers that are not registered with the IYS,
  • is obliged to check whether the recipients’ confirmation available through the IYS,
  • cannot initiate the sending of messages to recipients who do not provide confirmation on the IYS, and
  • is obliged to notify the IYS if the recipients close their subscription line.

In summary, the amendments set forth under the Regulation pave the way for the supervision of commercial messaging via electronic media by the executive authority and provides a platform for recipients to be able to easily make rejection and complaint requests who are helpless in the face of unwanted commercial messages. We believe that the Regulation, which determines the obligations of the service provider and intermediary service provider on a systematic basis, will ensure the controlled communication of commercial messages.

Should you have any queries on the above, please do not hesitate to contact us.