The Regulation amending Regulation on Commercial Communication and Commercial Electronic Messages (“Amendment Regulation”) has been published in the Official Gazette dated 04 January 2020 and numbered 30998. Among certain important new provisions explained below, the Amendment Regulation has included the messages sent to the students of the private education institutions and their guardians within the Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation”). The effective date of the Amendment Regulation has been set forth as 01.09.2020.
New definitions have been added to the Definitions article 4 of the Regulation. In this respect, Institution has been defined as the institution authorized by the Trade Ministry (“Ministry”) to establish the commercial electronic messages management system, Commercial electronic message management system (MMS) has been defined as the system, which enables the approval and the rejection for the commercial electronic messages and the management of the complaint process and MMS Number has been defined as the individual number assigned to all the brands and service providers registered before the MMS.
Under the new provisions, it is required for the service providers to obtain via MMS or by themselvespre-approval regarding the commercial electronic messages sent to the receivers’contact addresses(the receivers are defined as consumers or real or legal persons acting for operational or any other purposes). Accordingly, pursuant to the Amendment Regulation, it has been regulated that the real and legal persons who wish to send commercial electronic message need be registered before the MMS and it will not be allowed to send any commercial electronic messages to receivers who have not provided their approval before the MMS.
With the Amendment Regulation, MMS has been foreseen as a system through which it will be possible to obtain the approval of the related receivers before sending them commercial electronic messages. No control will have to be made through MMS in case it is not necessary to obtain approval before sending commercial electronic messages. However, even though it is not necessary to obtain the prior approval of the receivers who are merchants or tradesmen before sending any commercial electronic messages to their e-mail addresses, it is not possible to send them commercial electronic messages if they use their rejection right.
In this regard, before sending any commercial electronic messages to the e-mail addresses of receivers who are merchants or tradesmen, the e-mail addresses of the related receivers are required to be registered before the MMS by the service providers and it shall be controlled through MMS whether the receivers have used their rejection rights or not. An approval via MMS should be obtained before sending commercial electronic messages. Approvals that are not received through MMS will be registered with the MMS by the service provider within three business days and the approvals, which are not registered with the MMS, will be accepted as invalid.
The service provider will share the rejection notifications with MMS within three business days. The receiver can use its rejection right through MMS as well. The Institution prepares the necessary technical infrastructure in order for the service providers to use the system efficiently, the complaint process to be managed within an efficient and quick timeframe, the reportings and receiving of all the commercial electronic messages complaints, the use of rejection right, the receipt of approval via MMS and the registration of approvals and rejections before the MMS andprovides to the Ministryaccess to these information. The Institution takes all the necessary technical measures in order to prevent any disruption of the commercial electronic messages’ transfer. The Institution is responsible to conduct all the other transactions requested by the Ministry related to the MMS.
Some changes are also made regarding the liabilities of the intermediary service providers regulated under the Regulation. The intermediary service providers cannot receive approval to send the commercial electronic messages on behalf of third parties in order to promote them and their goods and services. The intermediary service provider cannot initiate the sending of the commercial electronic messages, which belong to service providers who are not registered before the MMS. The intermediary service provider who initiated the sending of the commercial electronic messages by the service provider’s instructions, before starting the sending of the messages, will check whether the receivers have submitted their approvals through MMS or not and cannot initiate the message sending process to receivers who have not submitted their approvals through MMS.
The Institution is liable along with the service provider and the intermediary service provider, for taking all the necessary cautions to prevent the illegal process and access and the storage of the personal data, that it has received due to the services and transactions it has conducted within the scope of this Regulation,without prejudice to the relevant legislation provisions.
The receivers will be able to make their complaints regarding the commercial electronic messages via MMSand such complaint application will be subject to the pre investigation through MMS. The intermediary service provider who initiated the sending of the commercial electronic messages by the service provider’s instructions will respond to the document and information requests regarding the messages mentioned in the complaint applications through MMSwithin fifteen days.
As a final note, all the approval received within the scope of this Regulation will be transferred to the MMS by the service providers until 01.06.2020. At the end of this time frame, MMS will send a message to the receivers informing them that their approvals have been uploaded to the MMS and that these approvals will be deemed valid if they are not controlled until 01.09.2020 and that they can use their rejection rights via MMS. The receivers shall control the approvals uploaded to the MMS until 01.09.2020. The commercial electronic messages sent after this date will be deemed as approved. The Ministry is authorised to postpone these time frames for three months.