Ecommerce in Turkey

E-commerce has greatly expanded in Turkiye in recent years. According to the latest reports published by the Ministry of Trade, Turkiye’s e-commerce sector reached TRY 91.7bn trading volume in the first half of 2020, which represents a 64% increase compared to the same period in 2019. Retail purchase rates have gradually decreased while the proportion of e-commerce to total retail sales has greatly increased. Accordingly, e-commerce transactions accounted for 14.2% of trade in Turkiye in the first half of 2020. In consideration of the consistent growth of the Turkish e-commerce sector in recent years, trade volume and market share of e-commerce businesses are expected to increase further in the coming years.

While there is no explicit provision requiring a foreign company to establish a subsidiary or branch in Turkiye to carry out e-commerce activities, registration with certain registry systems and the provision of certain information, such as a Central Registry Number (“MERSİS”), are compulsory before starting an e-business. This condition implies that in practice Turkiye requires an established local presence to carry out such activity. 

There is no licence or permit requirement to engage in e-commerce activities in Turkiye. However, companies wishing to carry out e-commerce activities must register with the following registry systems before starting their e-commerce business:

• Electronic Commerce Information System (“ETBİS”) providing the relevant information on their e-commerce activities.
• Data Controller’s Registry System (“VERBİS”) to comply the processing of personal data with the Data Protection Law.

Companies wishing to comply with the minimum-security standards and service quality may apply for an E-Commerce Trust Certification issued by Trust Certification providers authorised by the Ministry of Trade. This mechanism is, however, not a compulsory measure for e-commerce businesses.

A company may take the following steps to set up an e-commerce business:

• domain name registration and trademark registration for the domain name and brand name;
• entering into contracts with:
  • suppliers;
  • an accountant;
  • a hosting service provider;
  • an online payment provider licenced in Turkiye;
  • an IT service provider;
  • storage and shipping providers;
  • digital marketing companies;
  • a legal consultant.

If the website is targeted at consumers, it needs to fulfil the obligations under consumer law, but if it is targeted at merchants, consumer law will not apply and the rules governing the website will therefore be less restrictive according to the regulations stipulating transactions between merchants.

Accordingly, if a website is intended only for merchants, the business must ensure that it is accessible only by merchants and not by consumers to avoid any sanction for a breach of consumer law. In these circumstances, if a website initially intended for merchants subsequently becomes accessible to consumers, it must be adapted to the obligations under consumer law and the business must ensure that relevant consumer protection mechanisms are in place. However, as the legal framework governing merchants provides more flexibility compared to consumer law, a website primarily intended for consumers may also be accessible to merchants without breaching law. 

In conclusion, it is important to define the business model before starting the business within the framework of whether it is B2B or B2C, to ensure that the website is in full compliance with the applicable laws.

The e-commerce website must include the following elements:

• information on the service provider including company name, registered office address, email address and phone number, registered email address (“KEP”), commercial name and trademarks, and Central Registry Number (“MERSIS”). A service provider wishing to sell through an intermediary service provider must provide the above-mentioned information on the website of the intermediary service provider;
• a transaction guide including the following elements:
  • the technical steps that are necessary to enter into a contract such as selecting goods and services, providing delivery and payment information, and confirming the order;
  • information on whether the e-commerce contract will be stored by the service provider, whether the recipient will be able to access the contract later in that same environment, and for how long such access will be provided.
  • confidentiality rules related to the processing of personal data in compliance with the Data Protection Law;
  • alternative dispute resolution mechanisms, if any, in the event of a dispute between the seller and the buyer;
• a preliminary information form
• a membership agreement;
• T&C of use and sale;
• details of the consumer’s and service provider’s rights;
• cookies notification in compliance with the Data Protection Law.

Under Turkish Law, agreements executed between parties resident in Turkiye must be in Turkish. Other than that, there are no specific rules requiring the language to be in Turkish. However, consumer law stipulates that the information provided to the consumer must be understandable. Therefore, to be fully compliant with the regulations and ensure that the contents are understandable to Turkish consumers, the website information should be in Turkish. 

The online purchase of pharmaceuticals, medicine, human medicinal products, medical equipment, healthcare services, food, supplementary foods, cosmetics and hygiene are subject to specific regulations.

The online purchase of prescription medicine and treatments, medicinal food supplements and herbal products, fortune tellers, astrologists and dating services, alcoholic beverages, guns, shares, human organs, counterfeit products, e-cigarettes, tobacco and livestock are completely prohibited.

Consumers are entitled to withdraw from an e-commerce contract within 14 days of the conclusion of the contract without giving a reason or being subject to any penalty, except for perishable or expired products and those whose return do not comply with hygiene rules.

To use the withdrawal right, consumers must inform the seller or the provider of their decision to withdraw. The seller or the provider must refund the full purchase price including standard delivery charges, if any, within 14 days on receipt of the notification. Consumers must return the goods to the seller, the provider or the authorised person within ten days on receipt, unless the seller or the provider offers to pick them up.

The seller or the provider must inform costumers of the right of withdrawal and its limitations in accordance with the applicable law. If consumers are not properly informed, the withdrawal period is extended by a year starting from the expiry of the initial 14-day period.

If consumers are informed of their right to withdrawal within a year, the 14-day period starts running from the receipt of the notification. 

In the event of the exercise of the withdrawal right, any accessory contract comes to an end without being subject to any compensation or penalty.

Regarding defective goods, the consumer must notify the seller of the defect within 30 days following the date of delivery. The consumer is entitled to refuse the goods and terminate the contract by requesting a full refund, request a replacement of the product with a non-defective one or request a partial refund to compensate for the value of the product due to the defect or request a free repair. The seller must undertake the consumer’s choice of remedy. The consumer is also entitled to claim compensation in the event of an injury or damage due to the defective goods.

Unless a longer period is provided by law or agreed in the contract, the limitation period for claims for defective goods is two years following the date of delivery, even if the defect occurs at a later date. This limitation period does not apply in the event of a latent defect resulting from gross negligence or fraud on the part of the seller.

Turkiye adopted the opt-in model for marketing communications. Accordingly, electronic commercial messages can only be sent to recipients with their prior consent. This consent may be obtained in writing or via electronic communication channels. The content of the electronic commercial message must be in accordance with the consent obtained from the recipient.

If the recipient voluntarily provides contact information to the service provider, no additional consent is required for electronic commercial messages regarding change, use and maintenance of the goods or services already provided. 

Electronic commercial messages may be sent without prior consent, if:

• the recipient voluntarily provides his/her contact information to the service provider;
• the recipient is a merchant or an artisan;
• the message includes the collection of a debt, payment reminders, information update, purchases, delivery or otherwise similar actions related to an ongoing subscription, membership or partnership, without promoting any goods or services;
• the message is sent by an intermediary firm for information purposes only in accordance with Turkish Capital Market Law.

Recipients may refuse to receive or opt-out of receiving electronic commercial messages at any time without giving a reason. Service providers must inform their recipients of their right of refusal and right to opt-out. They are required to provide easy and free electronic communication means of opting out in every commercial electronic message they send. On receipt of the opt-out request, the service provider must stop sending commercial electronic messages to the recipient within three business days.

Opt-in marketing must comply with the provisions of the Turkish Personal Data Protection Law in terms of which personal data cannot be collected or recorded without the explicit consent of the data subject. Service providers may therefore be held responsible for collecting and using the contact information of recipients for marketing purposes as data controllers in the absence of the explicit consent of data subjects obtained in accordance with Turkish Personal Data Protection Law, unless otherwise provided by law.

Service providers must register with the Commercial Electronic Communication System (“IYS”). They are required to transfer the consent forms to the system. The system allows recipients to review the services to which they consented and use their right of refusal at any time via e-government system.

Non-compliance with the Competition Law and its secondary legislation may entail the risk of being subject to competition investigations and monetary sanctions.

Given the rapid growth of e-commerce in Turkiye, the main competition risks reside in compliance with the legal framework of vertical agreements in terms of which practices, such as limiting online sales by a distributor or applying different prices to distributors based on the channel, are prohibited in Turkiye. Additionally, taking the nature of e-commerce business into consideration, different businesses can affect each other regarding pricing as all pricing information is publicly available through their websites. In this respect, while conducting e-commerce business, unfair price determination breaching competition within the framework of concerted practice must be avoided.

The provision of electronic payment services is subject to authorisation in Turkiye. E-commerce businesses wishing to provide electronic payments to their customers must enter into a contract with a licensed electronic payment service provider or obtain an authorisation licence issued by the Central Bank.

The financial services provided to e-store customers are governed by the Law on Bank Cards, Credit Cards and the Regulation on Banks’ Information Systems and Electronic Banking Services and the Law on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions. 

Debit and credit card payment processing is regulated by the Law on Bank Cards and Credit Cards. Card holders and e-businesses are subjected to that law in the use of debit and credit cards for online purchases. It should be noted that under the law, the Banking Regulation and Supervision Agency regularly stipulates the number of instalments allowed for the purchase of several consumer products such as electronic appliances and furniture.

The purpose of the Regulation on Banks’ Information Systems and Electronic Banking Services is to enhance payment security in e-commerce as it regulates the management of banks’ information systems and electronic banking services. 
The Law on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions regulates payment security systems, payment services, payment institutions and electronic money institutions.

The Ministry of Trade is the main responsible authority for e-commerce and consumer protection. However, as e-commerce trade touches different areas of implementation, the following authorities also have responsibilities: 

• The Information and Communication Technologies Authority is the main body for monitoring the content on the internet.
• The Banking Regulation and Supervision Agency and the Central Bank of Turkiye regulate online payment systems and money flow.
• The Personal Data Protection Board under the Ministry of Justice is the main body for providing personal data protection, monitoring personal data process, concluding the complaints with regard to personal data protection violations and deciding on the imposition of administrative sanctions.
• The Competition Authority carries out inspections in the e-commerce sector and is authorised to implement sanctions within the framework of the Competition Law.

Regarding unsolicited or non-compliant electronic commercial messages, recipients are entitled to file complaints within three months of receiving the message, either online through the e-government system and the Ministry of Trade’s website, or in writing at the nearest provincial directorate at the complainant’s place of residence.

Regarding disputes between businesses and consumers, the law sets monetary limits for applying to arbitration committees or consumer courts. Consumers must apply to mandatory prerequisite mediation before filing a lawsuit. The decisions of the arbitration committee are legally binding. The parties may submit an objection to the latter within 15 days on receipt of the notification

There is currently no proposal for additional e-commerce regulation in Turkiye. However, there are likely to be changes to e-commerce legislation as needs arise given the rapid growth of e-commerce in Turkiye. In addition, there might be amendments to the legal framework of e-commerce in Turkiye in parallel with any future changes in EU Law in the future.