DECISION OF THE ADVERTISING BOARD ON AN ONLINE SHOPPING SITE

The Advertisement Board decided on the globally known online shopping site in the Advertisement Board Bulletin No. 343. In its relevant decision, the Board concluded that consumers were forced to accept targeted advertising with some impositions on consumers during the process of purchasing the products offered for sale by consumers.

As a result of the examinations, it has been observed that the products offered for sale on the company's website offer consumers the options of "Log in" and "Create an account" without including any different options during the purchase process. At the same time, the company has made it obligatory for the consumers to accept the "When you create an account, you agree to the terms of use and sale." condition in the process of a purchase.

In this context, in the process of becoming a member of the site by the company, no option has been left to consumers as to whether they accept targeted advertising carried out by using their interactions with the company sites, content or services. Targeted advertising is defined as the process of delivering customized advertising messages to a specific target audience.

It is clear that commercial practices carried out with the aforementioned site design adversely affect the will of consumers to make decisions or choices and that consumers are not explicitly informed. This shows that the consumer is not given the opportunity to leave no trace on the platform after purchasing the product.

It is not enough to eliminate the contradiction that consumers are directed to make changes to account settings in order not to be exposed to targeted advertising after creating an account, that is, consumers are left out of the condition in a way that is more difficult than accepting the targeted advertising condition. In order to carry out the application in question, it was necessary to ensure that consumers accepted targeted advertising by obtaining their explicit consent during the membership phase.

As a result of the examination, the Advertising Board decided to impose a penalty for stopping the mentioned commercial practices in accordance with Articles 63 and 77/13 of the Law on Consumer Protection No. 6502.

The decision was published on the website of the Republic of Turkey Ministry of Commerce.

Link: https://ticaret.gov.tr/data/5d1c9edd13b87615344cd4c8/_342_Bas%C4% B1n_B %C3%BClteni%2008.03.2024.pdf

CONSTITUTIONAL COURT ON THE RIGHTS OF THE ADVOCATE

In accordance with the Constitutional Court's decision numbered 2023/163, Decision no. 2024/57 and dated 22.02.2024, within the scope of the provisions of changing the nature of the crime, the statements that written notifications will be made to the defense counsel, if any, and that the defense counsel will benefit from the rights granted to the defendant in the same way as the defendant, have been cancelled.

Provisions of the Law to be annulled;

- Anti-Terror Law No. 6526 and Article 94, paragraph 3 of the Code of Criminal Procedure "(1) Upon the arrest warrant issued by the judge or court, the person arrested during the investigation or prosecution phase shall be brought before the competent judge or court within twenty-four hours at the latest.

(2) If the arrested person cannot be brought before the competent judge or court within twenty-four hours at the latest, an interrogation or testimony of this person shall be made by the competent judge or court by using the voice and video communication system established in the place where they were arrested within the same period or, if not available, in the nearest courthouse.

(3) Upon the arrest warrant issued for the purpose of taking a statement, the release of the person who is arrested outside of working hours and who undertakes to be present before the judicial authority on the determined date may be ordered by the public prosecutor. This provision may only be applied once for each arrest warrant. The person who does not fulfill their commitment shall be fined one thousand Turkish liras by the public prosecutor where the arrest warrant is issued."

The provision of the law in question has been examined by the Constitutional Court in terms of the "prosecution phase". The conditions stipulated by the rule are ambiguous and uncertain, the prosecutor is given unlimited discretion, the fact that the arrest warrant issued by the court can be lifted by the prosecutor is compatible with the independence of the judiciary, and the inclusion of only those caught outside working hours in the scope of the rule is a violation of the principle of equality,

- Pursuant to Article 226 of the Criminal Procedure Law No. 5271, (1) Unless the defendant is notified before the change in the legal nature of the crime and is kept in a state that can make his defense, he cannot be convicted with anything other than the provision of the law whose legal elements are mentioned in the indictment.

(2) The same provision shall apply when the circumstances requiring the increase of the penalty or the application of security measures in addition to the penalty arise for the first time during the hearing.

(3) In cases where additional defense is required, the defendant is given time to prepare their additional defense upon request.

(4) Written notifications in the above paragraphs shall be made to the defense counsel, if any. Their defense counsel benefits from the rights granted to the defendant as they do. "

In accordance with the provision issued, the court conducting the trial will not notify the defendant about the right to additional defense, but will instead notify only their defense counsel. In this case, the defendant will not be able to use the right to attend the hearing in person and therefore the right to additional defense in person. The provision stipulates that the aforementioned rights will be exercised by the defendant's defense counsel, thus eliminating the obligation for the defendant to attend the hearing in person and to exercise the right of additional defense in person. By citing the reasons listed,

Articles 2, 9, 10, 36, 138, and 141 of the Constitution have been requested to be canceled by claiming that it is contrary to the articles.

In accordance with Article 36 of the Constitution, everyone has the right to defense and a fair trial. The guarantees provided by the right to defense are essentially included in the right to a fair trial. Securing the rights of defense in criminal proceedings ensures that criminal justice is carried out in accordance with equity.

In its decision, the Constitutional Court stipulated that in order for a fair trial to take place in criminal proceedings, the right of defense should be provided to the person himself. The right to be present at the hearing means that the person attends the hearing of his/her own case in person or together with their lawyer. In this way, the defendant, who is in a position to know the incident best, will have the opportunity to refute the evidence against him and to influence the court's decision by ensuring that the evidence is discussed and will be able to prove the accuracy of his defense.

Article 226 of the Law No. 5271, which includes the rule subject to objection, regulates the change in the legal nature of the crime. In other words, a regulation specific to the change in the nature of the accusation was made in the aforementioned article, and the rights that should be granted to the defendant and their lawyer were included. With the aforementioned regulation, the legislator envisaged that if the nature of the accusation, which refers to the legal characterization of the act, changes, the trial can be continued by granting the defendant the right to additional defense. Accordingly, the primary criterion to be taken into account in the restrictions on the right to a fair trial is that the restriction is made by law. The Constitutional Court stated that the legal rules that did not consider sufficient the formal existence of the law limiting fundamental rights would have to be specific, accessible and predictable regulations in a way that would not allow arbitrariness.

As a result of the reasons explained above, Article 226 of the Law No. 5271 Article 4. It was concluded that the paragraph was contrary to the Constitution and it was decided that it should be canceled. In line with the decision of the Constitutional Court, the importance of the right of individuals to a fair trial has been underlined once again.

The amendments will enter into force on 05.01.2025.

Link; https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2024/57?EsasNo=2023%2F163&KararNo=2024%2F57

DATA BREACH NOTIFICATION ABOUT YAMAHA MOTOR TO THE PERSONAL DATA PROTECTION BOARD

Yamaha Motor Company Ltd. is a Japanese based motor vehicle manufacturer. The company is currently the second largest motorcycle manufacturer.

Paragraph 5 of Article 12 titled "Obligations regarding data security" of the Personal Data Protection Law No. 6698 states that "In the event that the processed personal data is obtained by others through illegal means, the data controller shall notify this situation to the relevant person and the Board as soon as possible. If necessary, the Board may announce this situation on its own website or by any other method it deems appropriate.". On the basis of that provision, Europe N.V. informed the Board that there had been a data breach against Yamaha Motor. The breach notification was made after an independent cyber security investigator identified a vulnerability in the data controller's Customer Records Management (CRM) system.

Although the date of when the violation started cannot be determined exactly, it is stated that it may have started in 2019. It has been determined that the vulnerability is due to a faulty configuration in the customer portal on the said system and that any registered user can access the personal data of other users due to this faulty configuration.

The violation includes the name and surname of the customers, gender, e-mail addresses, customer number data and the phone number of some people.

It is believed that all customer records added before 2021 were affected by this vulnerability due to the breach reported by Europe N.V. In Turkey, the estimated number of people is approximately thirty-six thousand.

A notice of violation has been announced on the website of the institution and it has been reported that the investigations on the subject are ongoing.

Link; https://www.kvkk.gov.tr/Icerik/7850/Kamuoyu-Duyurusu-Veri-Ihlali-Bildirimi-Yamaha-Motor-Europe-N-V-

DECISION OF THE REGIONAL COURT OF JUSTICE REGARDING THE REMOTE-WORK MEAL FEE

Izmir Regional Court of Justice 4th Civil Chamber examined the remotely working, which gained importance after the pandemic, in its decision numbered 2022/720 and decision numbered 2024/179, and the payment of food wages to the worker if there is no agreement to the contrary.

The plaintiff started to work from home as of March 2020 and applied to the Court of First Instance regarding the failure to make the necessary payment for the food service. The plaintiff party claimed severance pay, overtime work, general holiday and meal wages. The Court of First Instance argued that the aid in kind provided by the defendant company to its workers should be converted into cash aid, which is an acquired right of the plaintiff. Thereupon, he calculated the meal fee receivable and decided to collect it from the defendant company together with the legal interest.

Employer obligations are determined within the scope of the Labor Law No. 4857. According to the Law, although it is not obligatory for the employer to give a meal fee to its employees by law, if the meal fee is included in the employment contract, it is obliged to pay this fee.

As a matter of fact, it is seen that the meal fee is within the scope of the agreement in the lawsuit filed. For this reason, the lawsuit filed with the Court of First Instance is related to the claim for workers' receivables. The court decided to accept the case. In this process, due to the failure of the plaintiff, who works as a customer representative with an indefinite term service contract at the workplace, to pay some labor receivables of the defendant, Clause 2 On the basis of the provision "If the wage of the employee is not calculated or paid by the employer in accordance with the provisions of the law or the terms of the contract" specified in subparagraph (e).

The decision given by the Court of First Instance was appealed by the defendant's attorney.

As a result of the appeal, since it is understood that the plaintiff has unpaid overtime, general holiday and meal wage receivables, the decision of the Court of First Instance regarding the acceptance that the plaintiff who terminated the employment contract has gained severance pay was found appropriate. According to the scope of the file, it was found appropriate that there was food and service at the workplace, and that remote working conditions did not prevent the payment of food wages.

In line with the reasons explained, it was decided to reject the defendant's appeal. As a result of the examination made on the file, Article 9 of the Labor Courts Law No. 7036 Article 362 of the Code of Civil Procedure No. 6100 has been unanimously decided on 06.02.2024, to be certain in terms of amount.

Sakarya Regional Court of Justice approved the decision that the meal fee should be given to the employee in case of switching to remote work, even if there is a meal in kind at the workplace.

ADMINISTRATIVE FINE FOR PHARMACEUTICAL COMPANIES BY THE COMPETITION BOARD

The Competition Board started to conduct investigations against recognized pharmaceutical companies on 09.11.2023.

As a result of the investigation, it has been stated that the pharmaceutical companies in question are in agreement/concerted action with their competitors by making gentlemanly agreements not to hire each other's employees in the labor market and by exchanging sensitive information between competitors. Article 4 of the Law on the Protection of Competition has been violated by the aforementioned activities.

It is stated in the first paragraph of Article 4 of the Law on the Protection of Competition no. 4054 that; "Such decisions and actions of inter-enterprise agreements, concerted actions and associations of undertakings that have the purpose of directly or indirectly preventing, distorting or restricting competition in a certain goods or service market or that cause or may cause this effect are unlawful and prohibited.

Although the concept of "agreement" is not fully defined in the Law, in order to reveal the existence of an agreement in line with the decisions taken and the justification of Article 4, it is not deemed necessary to have an agreement or decision in which the parties expressly agree, and the agreement of the wills of the parties is considered sufficient. Even non-binding agreements or verbal agreements are open to examination under competition law. Harmonious action, on the other hand, can be defined as a form of coordination between businesses that never reaches the stage of existence of an agreement, but instead intentionally substitutes it, creating a practical cooperation between them against the risks of competition. In cases where the existence of an agreement cannot be proven, price changes in the market or the balance of supply and demand or the activity areas of the enterprises are similar to those in markets where competition is prevented, distorted or restricted, it is presumed that the enterprises are in concerted action.

In its assessment of the impact on the determination of the resale price, the Board analysed the positive and negative effects of the application of the determination of the alleged resale price on customers and consumers. The most important of the possible negative effects attributed to the determination of the possible negative effects attributed to the determination of the resale price by the Board is the emergence of horizontal coordination in the upper or lower market as a result of the increase in transparency with the restriction of intra-brand competition.

In the light of the reasons explained above, it is concluded that the two pharmaceutical companies participate in gentlemen's agreements that prevent the transfer of employees between enterprises through direct/indirect agreements, reduce or suppress employee wages and keep working conditions below competitive levels.

As a result of the reconciliation texts submitted by the undertakings based on the interim decisions of the Competition Board, and it was decided to impose an administrative fine of 33 million 321 thousand 564 Turkish Liras on the companies in cooperation.

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