As known, in principle, regardless of whether or not they are established in Turkey, all real persons and legal entities ("service providers") which send marketing, advertising and promotion related commercial electronic message ("e-message") to their consumers, merchants and craftsmen residing in Turkey, subject to the Law on the Regulation of Electronic Commerce numbered 6563 and the Regulation on Commercial Communication and Electronic Commercial Messages ("Regulation") (together "ETK legislation") and are obliged to be compliant with the ETK legislation. Service providers which act in violation of the ETK legislation shall be subject to an administrative fine which may extend from a minimum TRY 1,000 to a maximum TRY 20,000.
With the amendments made on January,4 2020, to the Regulation which regulates in detail, the procedures and principles regarding sending of e-messages, service providers that are subject to the ETK legislation, became obliged to be registered with the Communication Management System ("CMS").
The terms regarding the obligation of the CMS registration depends on the group of persons (consumers and merchants/tradesmen) to which e-messages are being sent to. To clarify, in the case a Company sends e-messages
- to merchants/tradesmen and/or only
consumers, the final CMS registration date is
August, 31 2020. This date has been postponed
once, we would like to point out that it shall not be
postponed once again. It has been stipulated that service
providers that do not comply with the CMS registration obligation,
shall be subject to an administrative fine may extend
from a minimum TRY 5,000 to a maximum TRY
Non-compliance with the registration obligation also brings with it other discrepancies. If service providers, that is not registered with the CMS until August 31, 2020, sending e-messages as of September, 1 2020 will constitute a violation of the ETK legislation. In other words, the consents for receiving e-messages that are not transferred to the CMS system until September 1, 2020 will be invalid. Since this will also void existing consents in its CRM database, it will need to run the consent mechanism, try to reach again the relevant persons and re-create its CRM database. The sanction for unlawful e-message sending is an administrative fine may extend from a minimum TRY 1,000 to TRY 5,000.
- only to merchants/tradesmen (within the B2B scope), we may assess the registration date the Company is subject to by taking into account whether the consent procedure may once again be applied in case the persons use their rights to reject with regard to receiving e-messages.
Finally, we would like to note that, for now the CMS system only allows companies to be registered, which send e-messages by means of SMS, e-mails and call centers and only audits their consent/rejection mechanisms. The reason why, in the case a Company does not send/deliver e-messages by means of SMS, e-mail or call centers, but sends e-messages via its website/applications through pop-ups etc., the Company is not obliged to be registered with the CMS for now. In the near future, CMS may allow the service providers that sends e-messages by other means or the relevant processes of the registered service providers to be registered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.