Amendments to the Regulation on Commercial Communications and Commercial Electronic Messages (the “Regulation”) were published in the Official Gazette on January 4, 2020. The Regulation now provides details of the Commercial Electronic Communication Management System (the “CMS”, İleti Yönetim Sistemi) and introduces additional amendments regarding consent and refusal processes. The Regulation defines principles and procedures regarding notification obligations for senders of commercial electronic communications. It also addresses and defines compliance criteria for the outlined principles and procedures.
What is the CMS?
The CMS is a tracking and notification system to be used by recipients or potential recipients of commercial electronic communications to grant or withdraw consent to receive commercial electronic communications. Commercial electronic communication is defined as the transmission of content via data, voice or image messages for commercial purposes using means such as mobile and land-line telephones, call centers, fax, auto-call machines, smart voice recorder systems, e-mail and short message services. The CMS also provides for the development and management of complaint processes relating to commercial electronic messages. The Union of Chambers and Commodity Exchanges shall be in charge of launching and managing the CMS system.
Legal entities and real persons service providers (the “senders”) who wish to use electronic messages for commercial purposes must register with the CMS. Senders who fail to register may not send commercial electronic communications. Once registered, senders must make certain that their commercial electronic communications are sent only to recipients who have registered with the CMS their specific consent to receive such electronic communications from the sender.
Consent registration methods
- Consent gained via the CMS: Consent received directly through the CMS via an electronic means will collect the recipient’s electronic communication address and affirmative declaration of consent to receive commercial electronic communication at that address from the sender. Confirmation of consent acquired through an electronic environment must be sent to the recipient within 24 hours with an option to refuse.
- Consent gained outside of the CMS system: Consent may also be received through a means external to the CMS. Such consent must confirm the recipient’s name, electronic communication address and affirmative declaration of consent to receive electronic communication from the sender. The sender must record such consent with the CMS within three business days. The burden of proof that consents have been recorded with the CMS is on the service provider and consent records must be kept for three years following the expiration date of the consent’s validity. Consents that are not on the CMS shall be deemed invalid.
No prior consent is required to send commercial electronic messages to merchant recipients unless they have exercised their right of refusal. Before sending, however, service providers must inform the CMS of the merchant’s electronic communication addresses.
Right of refusal
To enable recipients to easily withdraw consent, service providers must include a customer service number and an SMS number/URL address dedicated to refusal notifications in each commercial electronic message. Service providers are obliged to notify the CMS about a refusal within three business days.
Obligations of intermediary service providers
Intermediary service providers are real or legal persons who provide electronic commerce environments for the economic and commercial activities of others. Under the Regulation, intermediate service providers:
- must allocate technical facilities to accommodate the obligations required by the Regulation;
- are obliged to control the recipient’s consents with the CMS prior to sending commercial electronic messages;
- may not acquire consent to send commercial electronic messages to advertise, promote or operate others’ services on behalf of others; and
- are not obliged to control the content and/or check the legality of the goods and services subject to the content.
Consents acquired in compliance with the Regulation must be transferred to CMS by June 1, 2020.
The CMS will request recipients to control their consents until September 1, 2020, after which date, all consents on record will become valid.
The Ministry of Trade has the right to postpone these dates for three months.