Commercial Electronic Messages and Message Management System Registration Process
Av. Ali Yurtsever L.L.M
With the entry into force of the Law No. 6563 on the Regulation of Electronic Commerce (Law), the transmission of commercial electronic messages used by many companies for promotional and advertising purposes to users and customers is subject to certain terms and conditions. Following the recent changes made in the Regulation on Commercial Communication and Commercial Electronic Messages (Regulation), individuals and institutions (service providers) who want to send commercial electronic messages to their users and customers are obliged to register in the Message Management System ( İYS ). It is very important for service providers to pay the utmost attention to these obligations so that they do not face heavy administrative sanctions.
Commercial Electronic Message Definition and Obtaining Approval
Commercial electronic message is defined in Article 2 of the Law and Article 4 of the Regulation. In accordance with both articles, commercial electronic message is “ a message containing data, audio and video content sent for commercial purposes and carried out in electronic environment using means such as telephone, call centers, fax, automatic dialing machines, smart voice recording systems, e-mail, short message service.defined as ”.
Although a general definition is made here, institutions and organizations that want to send messages to their customers cannot be sure about which messages will be considered commercially. Pursuant to Article 6 of the Law, since commercial electronic messages can only be sent in the presence of the recipients’ prior consent, it is very important to determine which messages will be considered as commercial electronic messages.
In order to eliminate this confusion, with the amendment made in Article 5 of the Regulation, it has been clearly determined which messages will be considered as commercial electronic messages. Pursuant to this Article 5, any message sent to the electronic communication addresses of the recipients in order to promote and market their goods and services, to market their business or to increase their recognition with content such as congratulations and wishes will be considered as commercial electronic messages and therefore cannot be sent without the prior consent of the recipient. .
As we mentioned above, in accordance with Article 6 of the Law, prior approval of the relevant recipients is required in order for commercial electronic messages to be forwarded to the recipients. It is possible to obtain this consent in writing or by any means of electronic communication.
Another point to be noted here is that the provisions of this Law and the Law on the Protection of Personal Data No. 6698 (KVKK) conflict in terms of approval to be obtained. This contradiction has become even more evident with the latest decisions of the Personal Data Protection Authority. Therefore, when obtaining communication approval for commercial electronic messages, it is important to consider the express consent provisions specified in the provisions of the KVKK and to obtain the approval/consent to be obtained in accordance with the provisions of both laws.
Message Management System and Registration Obligation
Although the provisions of the Law and the Regulation and the procedures and principles regarding the sending of commercial electronic messages are clearly defined, it is observed that there are problems in practice such as the recipients of the messages cannot follow which persons and institutions they have given their approval under and under what conditions, and the message senders continue to send messages to the recipients who do not have permission.
The Turkish Commercial Message Management System (IYS) was introduced with the amendment made in the Regulation in order to eliminate these problems and to enter all the approvals received from the recipients into a national integrated system, to control the approvals through this system and to send messages accordingly .
IYS can be summarized as a national approval system. With this system, it is aimed that service providers who want to send commercial electronic messages can get approval from the recipients through IYS, the recipients can use their right of cancellation and refusal regarding the approvals they have given before, and they can also submit their complaints about the sendings made in violation of the legislation through this system.
In this context, in order for the system to be national and integrated, and for all recipients to check their approvals over the system, with the amendment made in Article 5 of the Regulation, service providers wishing to send commercial electronic messages have been required to register with the IYS. Accordingly, service providers are obliged to register with the IYS and upload the approvals they receive from the buyers to this system. Pursuant to Article 5/3 of the Regulation, it is prohibited to send commercial electronic messages to recipients who do not have approval on the Message Management System.
Persons and Institutions Required to Register in the Message Management System
The phrase “service providers” in the regulation causes a misunderstanding that some real and legal persons do not have to be registered in this IYS system. Because, the Regulation defines service providers as “ real or legal persons engaged in electronic commerce activities ”. Based on this definition, although it can be concluded that only natural and legal persons engaged in electronic commerce activities are obliged to register, again in Article 5/2 of the Regulation. Article requires all natural and legal persons who want to send commercial electronic messages to register with the İYS.
Therefore, all real persons who engage in commercial activities in any way and/or want to send commercial electronic messages to the electronic communication addresses of the buyers in order to promote their own brand and/or business and/or advertise their services/products or to increase their recognition with content such as celebrations and wishes and legal entities are obliged to register with this Message Management System and upload all the approvals they have previously received from the recipients to the IYS.
All persons and institutions that send commercial electronic messages to recipients who do not comply with these obligations and do not register with the IYS and/or do not have approval in the system may face administrative sanctions under both the Law on the Regulation of Electronic Commerce and the KVKK.
The deadline for service providers, who are obliged to register to the IYS, to register the system was determined as 31.05.2020. However, due to the negative impact of the Covid-19 epidemic on daily life and disruptions in business processes in this process, this deadline has been postponed to 31.08.2020. Therefore, service providers are required to complete their registration to the Message Management System and upload existing recipient approvals to the system by 31.08.2020 at the latest .
Validity of Approvals Received Before Registration
As we mentioned above, the communication approvals obtained from the recipients in accordance with the provisions of the Law and the Regulation before registration in the Message Management System must also be uploaded to the IYS by 31.08.2020 at the latest. Following the uploading of these approvals to the system, the buyers will be able to check all the approvals they have given over the system until 1 December 2020 and cancel the approvals they wish.
It is accepted that if the approvals whose system has been installed until 31.08.2020 are not canceled by the buyers until 1 December 2020, these approvals will also be valid for the new system. Therefore, the approvals obtained before registration are submitted to the İYS on 31.08.