Türkiye has updated its e-commerce regulations in line with mainly European Union 's Digital Markets Act with the publication of the new amendments introduced to the “Law on the Regulation of Electronic Commerce No. 6563" (“E-Commerce Law”) on July 1, 2022. As of December 29, 2022, a new secondary legislation has also been introduced and published as Regulation Regarding the Electronic Commerce Intermediary Service Provider and Electronic Commerce Service Providers (“Regulation”) for prescribing additional details in relation to obligations and rules set out under the E-Commerce Law.
With the recent decision of 10th Chamber of Council Of State dated 08.05.2023, it has been unanimously decided for stay of execution of the Articles*, including Article 12 which regulates “removal of the infringing contents upon the complaints of the right holders or their representatives with respect to the IPR infringement”.
What was introduced with this regulation?
Amendments introduced to the E-commerce Law have brought significant obligations to e-commerce service providers (“SP”) and e-commerce intermediate service providers (“ISP”), especially in terms of intellectual property rights (“IPR”).
You may reach our detailed article on the E-commerce Law and Regulation from https://legal.deris.com/en/news/deris/343-new-chapter-for-ip-in-e-commerce.
E-commerce in Turkey and around the world has rapidly grown especially after the pandemic. As of 2022, the domestic e-commerce volume reached 800.7 billion liras with an increase of 109 % compared to the previous year.
With the increase in the volume and use of e-commerce platforms, the IPR infringements also increased in parallel. Due to fast-developing nature of the platforms and the limitless sellers who can put products to the platforms, the need for IP owners to take faster action in IPR infringements has also raised.
Under the new Regulation and E-Commerce Law, ISPs were obliged to process the complaint of the right holder (or their representatives) and remove the infringing content, if the complaint met the requirements set by the law and then notify the removal to the parties. SPs were then entitled to object against ISPs’ removal decision. If the SP can clearly prove the legitimacy of its actions in its objection, ISP would re-publish the removed content subject to the complaint within 24 hours at the latest from the receipt of the objection and notify the same to the parties without delay.
While the Regulation expedited the process of take-down procedures in IPR infringements taking place on e-commerce platforms by giving the right holder the opportunity to remove the infringing content without applying to the court (provided that the right holder submits the evidence and documentation set by the Law proving its rightfulness), it has also become subject to criticism with the concern that it would negatively affect the commercial activities of the sellers on the platforms, as the removed contents were being re-published only upon submission of an objection by the seller which needs a strict follow-up by the parties. Some also argued that IPR infringement claims should be evaluated by Judges and not be subject to an evaluation carried out by ISPs.
Although the criticisms have a certain perspective, the documentation and evidence set by the law for acceptance of the right holder’s complaint includes a statement of the right holder, confirming its responsibility for the SP’s damages that may arise in the event that the information and documents submitted within the scope of the complaint are untrue. We believe that the lawmaker included such statement as a mandatory requirement to ensure equality and balance between the right holders and the SPs, preventing the right holders to enforce unlawful claims to SPs and seize their commercial activities in a potential illegitimate way.
In addition, it is worth noting that the parties always have the option to apply to the Courts with infringement claims as applying to the complaint system before ISP’s is not a mandatory step to follow a legal route but only offered an alternative solution mechanism to IP infringements.
The Decision of Council of State
One of the e-commerce platforms applied to The Council of State for annulment of the Articles* of the Regulation by claiming that the relevant articles were against freedom of competition, freedom of contract, principle of proportionality in addition to others and also asked for stay of execution for the relevant articles. The plaintiff also asked for stay of execution for the relevant articles of the Regulation.
The defendant Ministry of Commerce has stated that the purpose of the Regulation and the Law was to prevent unfair commercial activities on e-commerce platforms and the obligations under the same has public interest.
Upon evaluation of the 10th Chamber of Council of State, it has been unanimously decided for stay of execution of the relevant Articles including Article 12 which regulates “removal of the infringing contents upon the complaints of the right holders or their representatives with respect to the IPR infringement”.
With the stay of execution, obligations of the ISPs in terms of IPR infringements have been suspended until the decision of the Council of State on annulment of the subject Articles. The Council of State will now issue its decision and is expected to announce it within five months.
As also stated by the Ministry of Commerce, prevention of IPR infringements on e-commerce platforms has public interest as IPR infringements create unfair competition between the parties and cause the infringers to gain unfair benefits from their actions. While it is possible for the parties to apply to legal routes for any IPR infringement claims, the court proceedings in Turkey are much costly and time-consuming option for the right holders. Therefore, creating alternative solution mechanisms for prevention of IPR infringements on e-commerce platforms which are subject to daily and fast consumption of the consumers are significant for the right holders.
The strict requirements in relation to the documents to be submitted as to the origin of the IP rights as well as a mandatory statement to be provided by the right holder to cover any potential damage of the SPs also prevents misuse of the objection and creates a balanced protection for both parties. In other words, the Law prevents the right holders to file complaints and remove the contents unlawfully by forcing the right holder to cover any damage of the SPs due to right holder’s complaint.
Accordingly, we believe that fast paced and daily used platforms should be able provide an environment where disputes between right holders and SPs can be resolved more quickly and cost-effectively to promote fair and balanced protection for right holders, SPs as well as consumers.