Compliance Processes in Commercial Electronic Communications

With the acceleration of digitalization, messages containing data, audio and visual content sent via SMS, e-mail, call center applications, social media platforms, mobile application notifications, automated calling machines, intelligent voice recording systems and similar electronic communication tools have become one of the fundamental elements of advertising and marketing activities. In this context, any commercial communication activity carried out for promotional or marketing purposes through electronic communication tools by natural and legal persons (the “Service Providers”) — by means of campaign announcements, discount notifications, notifications recalling users back to the application, personalized advertising content, remarketing activities, automated communication processes generated based on user behavior, communications aimed at increasing brand awareness, and various promotional content, etc. — falls within the scope of commercial electronic messages.

The legal framework governing commercial electronic message operational processes is principally set out in Law No. 6563 on the Regulation of Electronic Commerce and the Regulation on Commercial Communication and Commercial Electronic Messages.

Obligation to Register with the Commercial Electronic Message Management System

The Commercial Electronic Message Management System (İYS), which lies at the center of electronic commercial message processes, is an infrastructure that enables service providers to record the consents obtained from recipients, to manage rejection notifications, and to track commercial message processes through a central system; and it is mandatory for service providers to first register with the İYS in order to be able to send commercial electronic messages to individuals. Application and registration procedures for the Message Management System can be carried out at https://iys.org.tr/.

Obligation to Obtain Consent

• In order for service providers to send commercial electronic messages to the relevant recipients, prior consent must be obtained by the service provider in writing, by any means of electronic communication, or via the İYS.
• For consents not obtained through the İYS, the service provider shall transmit the information that consent has been obtained — while also granting the right to refuse — to the recipient’s electronic communication address within 24 hours, and shall additionally record it with the İYS within three business days; consents not recorded with the İYS are deemed invalid.
• The consent shall include the recipient’s affirmative declaration of will indicating acceptance of receiving commercial electronic messages, together with their first and last name and electronic communication address.
• The granting of consent for commercial electronic messages cannot be put forward as a precondition for the supply of the goods and services offered.
• A request for consent cannot be made by sending a commercial electronic message to the recipient’s electronic communication address.
• In the consent text, the affirmative declaration of will cannot appear as pre-selected.
• Where consent is obtained by incorporating it into the content of a contract, it must be obtained at the end of the contract, under a separate “commercial electronic message” heading, with the right to refuse also being granted, and written in at least twelve-point font.

Exceptional Cases Not Requiring Consent

It is provided that in certain exceptional cases, obtaining consent for sending commercial electronic messages is not required:

• Where the recipient has provided their contact information for the purpose of being contacted, in relation to changes, use and maintenance concerning the goods or services supplied,
• Provided that no goods or services are promoted and no advertising thereof is made; in relation to an ongoing subscription, membership or partnership status, as well as collection, debt reminders, information updates, purchase and delivery, or similar matters,
• In cases where the service provider is subject to a disclosure obligation imposed by the relevant legislation,
• For commercial electronic messages sent to recipients who are merchants or tradesmen, there is no obligation to obtain consent — unless they exercise their right to refuse.

Matters That Must Be Included in the Content of the Messages

Commercial electronic messages must include information identifying the service provider, accessible communication channels, and the mechanisms through which the recipient may exercise their right to refuse. Furthermore, it is important that the fact that the message carries an advertising, campaign, discount, gift, promotion or informational purpose, as well as the validity period of the promotions and the conditions required to benefit from them, be clearly comprehensible. On the other hand, an accessible communication address — such as a customer service number, a short message number, or a URL address dedicated solely to refusal notifications — must also be provided.

Right to Refuse

The recipient has the right to refuse to receive commercial electronic messages / to withdraw consent without showing any justification. Notification of refusal, whether made via the İYS or by external means, renders the consent relating to the communication channel through which the notification was made invalid as of the date of notification. The service provider must cease sending commercial messages within 3 business days following receipt of the refusal notification, and where the refusal notification is conveyed through a channel other than the İYS, must report this notification to the İYS within 3 business days as well.

Use of an Intermediary Service Provider

While it is possible for the service provider to use an intermediary service provider in order to obtain the technical means for fulfilling its obligations when sending commercial electronic messages, the intermediary service provider is not obliged to control the content, nor to investigate whether there is any unlawful activity or situation in relation to such content and the goods or services that are the subject of the content. However, it is stated that they are obliged to check, before commencing message transmission, whether the recipients’ consent exists via the İYS; to align their commercial electronic message transmission system with the İYS; not to initiate message transmission to recipients who do not have consent on the İYS; and to notify the İYS where recipients close their subscription line. It is furthermore stipulated that intermediary service providers cannot obtain consent, on behalf of the service providers for whom they send commercial electronic messages, for the purpose of promoting or marketing those providers’ goods and services or promoting their business.

Audit and Enforcement Mechanisms

It is stipulated that the Ministry of Trade is authorized to audit activities and transactions relating to commercial electronic messages, either ex officio or upon complaint; and complaint applications regarding commercial electronic messages being sent unlawfully may be made electronically through the e-Government Gateway, the İYS or the Ministry’s website, or in writing to the provincial directorates.

Where, as a result of the examination of a complaint, it is determined that a commercial electronic message has been sent unlawfully, it is provided that administrative monetary fines ranging between TRY 18,007.82 and TRY 270,870.17 per message — depending on the nature of the violation — shall be imposed against the relevant service provider.

Conclusion

Electronic commercial message processes, which lie at the center of digital advertising and marketing activities, constitute an area of compliance that gives rise to significant legal and operational obligations. In particular, campaigns conducted via SMS, e-mail, call center activities and mobile application notifications must be addressed holistically in terms of consent management, İYS integration, refusal mechanisms, data processing procedures, and content management.