Turkish Law regulates online activities under Law No. 5651 on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet Broadcasting (Internet Law). In this context the Law no. 5651 includes provisions as to the obligations and responsibilities of content providers, hosting providers and access providers.
Within the scope of the Law no. 5651 “access provider” is defined as any organization that arranges for an individual or an entity to have access to the Internet; whereas the “content provider” is indicted as individual or legal entity that produce, modify and provide all kinds of information or data provided to users through the Internet. The Law no. 5651 also determines the “hosting provider” as individual or legal entities providing or operating systems that host services and content.
Accordingly, the Law no. 5651 holds the content provider liable for any content it provided on the Internet unless the content provider remarks its intent to provide access to a third party content through link provided. It is clear that the Law no. 5651 does not hold access provider or hosting provider liable for the content provided but mandates that the access provider must block access to the illegal content featured by its user upon notification.
Additionally, Turkish Electronic Commerce Law is specifically regulated under the regulation no. 29457 on "Regulation on Service Providers in Electronic Commerce and Intermediary Service Providers" ("Regulation"). According to the Regulation, any individual or legal entity which engage in electronic commerce activities are identified as “service providers”.
The online marketing platforms which operate electronic commerce transactions between consumers and other third parties through the Internet are acknowledged as “intermediary service providers” within the Regulation. Apparently online marketing platforms are more accurately defined under the intermediary service provider title pursuant to the Regulation.
The liability of the intermediary service provider is limited and it also excludes the supervision of the content provided by the content provider when using the electronic environment of the intermediary service provider. As regulated within the law no. 5651 “content providers” which would be vendors in the case of online marketing platforms have the liability on the content/goods they provide.
Currently, the Regulation does not stipulate content liability for “service providers” or “intermediary service providers”. In other words, online marketing platforms are being exempted from the liability of counterfeit products placed in their content and/or listings unless notified with the infringement by the right holder.
According to the landmark decision issued by the Civil General Council of Supreme Court on January 15, 2014 with regard to the dispute between L’Oréal vs. Gittigidiyor (Turkish online marketing platform operating under the umbrella of Ebay), online marketing platforms are obliged to take down the infringing content following its notification which would be in many different forms. Concerning the liability of the intermediary service providers for online counterfeiting within the scope of Gittigidiyor (online marketing platform) the Court ruled that once the intermediary service provider (Gittigidiyor) is notified with the lawsuit petition of the plaintiff, Gittigidiyor becomes responsible for the removal of the infringing content. Since the Gittigidiyor did not proceed with removing the infringing content following the notification of the lawsuit petition, the Court accepted Gittigidiyor as jointly liable from the trademark infringement and unfair competition claims.
The current regulations which lack situational content liability for online marketing platforms may inhibit the consumers and related third parties from enforcing their rights once they experience counterfeit product purchase. However, it must be noted that at some point, the importance of consumer satisfaction and loss of confidence in the rapid decision making world of electronic commerce could be a much greater issue than managing a legal conflict. Therefore, it would considerably be a better option to develop quick and effective means to combat counterfeiting in advance to maximize consumer satisfaction. We will analyze the internal measures offered by various online marketing platforms in our next article.