Nowadays, most of the commercial activities that take place in an electronic environment are carried out on intermediary platforms other than the companies’ own websites, through third parties who are not parties of the commercial relationship. Therefore, it is also important whether the intermediary service providers regulated in the Law No. 6563 on the Regulation of Electronic Commerce (“E-Commerce Law“) can be held responsible for the goods and services they offer through their websites. In this article, situations that intermediary service providers can be held responsible within the scope of electronic commerce legislation will be discussed.
II. THE CONCEPT OF INTERMEDIARY SERVICE PROVIDER and RELATED LEGISLATIVE REGULATIONS
The intermediary service provider is defined in Article 2 entitled “Definitions” of the E-Commerce Law as;
“natural or legal person that provides an electronic environment where others can conduct financial and commercial activities”
and it is regulated that the intermediary service providers will not be responsible for the control of the content offered by using the electronic environment provided by the intermediary service providers.
In the Article 9/1 of the E-Commerce Law, it is indicated that “Intermediary service providers do not have to check the contents provided by real or legal persons who use electronic platforms which are established by intermediary service providers and search whether there is illegal activity or situation concerning any content and the goods or services subject to these contents.”
In addition, the paragraph 2 of the Article 9 states that the procedure and principles for the application of the obligations regarding informing, order, principles of a commercial communications, condition for sending commercial electronic message, the content of the commercial electronic message and the right of purchasers to refuse getting such messages to intermediary service providers will be determined by regulation. The obligations of the intermediary service providers are regulated in Article 6 of the Regulation on Service Providers and Intermediary Service Providers (“Regulation”) which is promulgated on August 26, 2015. Within this scope, intermediary service providers are obliged to;
- include the information indicated in the Article 5 entitled “Obligation of Service Provider to Provide Information” of the Regulation which will be determined depending on whether the service provider is a business man/tradesman or not on the web site under the communication section,
- provide the necessary technical support for the information about service providers to which the related intermediary service provider allocates an area on its website to be displayed and updated,
- ensure that the service provider provides the information required by the Regulation before starting the electronic commerce activity.
In the last paragraph of the article, the regulation in the above-mentioned Article 9/1 of the E-Commerce Law is repeated and the liability of intermediary service providers is limited in terms of content. According to the regulation, although the responsibilities of intermediary service providers are limited, the conditions for intermediary service providers to be legally responsible for the content on their websites are not regulated.
The E-Commerce Law is regulated on the basis of the e-Commerce Directive 2000/31/EC of the European Union (“E-Commerce Directive”) and brings parallel arrangements with the E-Commerce Directive. According to the E-Commerce Directive, the intermediary service provider will not be held responsible for the content in the event that intermediary service provider does not have the ‘actual’ information about the illegal content and is unaware of the facts or situations that the illegality of the content may be understood in terms of compensation liability or immediately deletes or blocks access to illegal content after receiving relevant information. It should be noted that although the E-Commerce Law generally brings parallel arrangements with the E-Commerce Directive, the regulation does not include the scope of intermediary service providers’ responsibilities from the content in the electronic environment provided by them in discordance with the E-Commerce Directive.
III. EVALUATION IN THE LIGHTS OF THE SUPREME COURT’S DECISIONS
The decision of the Supreme Court Assembly of Civil Chambers numbered E. 2013/11-1138 K. 2014/16 establishes a precedent for the responsibility of the commercial activities carried out in the electronic environment offered by intermediary service providers.
The Supreme Court Assembly of Civil Chambers has accepted that if a product that violates the financial rights of the author is offered for sale through the intermediary service provider, there is a legal benefit in bringing an action against the intermediary service provider in terms of prohibition and prevention of infringement cases. In the decision, it was stated that the fault of the intermediary service provider should be proved in order for the emergence of compensation liability due to the violation of the author’s right to distribution. With this aspect, it provides a presumption for the responsibility of the intermediary service provider according to the E-Commerce Law Article 9/1 and it is stated that the intermediary service providers have no obligation to check the content offered by the users on the website.
Therefore, the compensation liability of intermediary service providers arises only if they are informed about the content that violates copyright, in other words, the contrary of the presumption regulated in Article 9/1 of E-Commerce Law is proved.
The Industrial Property Law No. 6769 regulates actions that violate the right to trademark in Article 29 and actions that violate patent or utility model rights in Article 141. According to these provisions, it is also accepted as a violation to sell, distribute, take to another trade area, subject to import, export or hold the products that violate trademark, patent or utility model rights for commercial purposes or to make a contract for this product even if it knows or needs to know this violation. In order for the intermediary service provider to be held responsible; it should be revealed that the intermediary service providers know or should know that product violates the industrial rights of third parties. The presumption which Article 9/1 of the E-Commerce Law regulates in terms of the responsibility of the intermediary service provider, also prevents to hold responsible the intermediary service providers. In order for intermediary service providers to be held responsible under these provisions; the contrary of the presumption provided for in Article 9/1 of the E-Commerce Law must be proved, that is, the intermediary service provider must be informed of the situation.
Similarly, in the decision of the 11th Civil Chamber of the Supreme Court dated 16.12.2019 and numbered E. 2019/618 K. 2019/8167; it is emphasized that it is possible to hold responsible the intermediary service providers if they know the content is illegal by saying that; “in order to mention about the responsibility of compensation of the internet hosting and service providers that do not have the title of the content provider, they need to know that the content they provide is unlawful and infringes the trademark right. Therefore, they should be warned by the rights holders in advance and request that they remove the illegal content within a reasonable time from the hosting and service providers. In addition, when claiming the removal of their content, the right holders must provide evidence sufficient for approximate evidence to the mentioned organizations that they have already obtained superior rights.” Within this scope, right holders are required to warn intermediary service providers about illegal content and request that they remove the content.
In the Article 9/1 of the E-Commerce Law and the Article 6/4 of the Regulation, it is stated that there is no obligation to control the content provided by real or legal persons serving in the electronic environment provided by intermediary service providers and to check whether the subject matter is lawful or not. However, as it will be seen in the Supreme Court decisions, if the content is illegal or violates someone else’s right, the intermediary service provider is obliged to remove the content from the website along with the notification to the service provider. Within this scope, unlike the E-Commerce Directive, although the conditions to hold responsible the intermediary service providers are not regulated in the E-Commerce Law and Regulation, it is proceeding in parallel with the E-Commerce Directive in practice.
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