The amendments to the Law on the Regulation of Electronic Commerce No. 6563 (“Law”) that was published on 7 July 2022 have come into force as of 1 January 2023. The Law brings important obligations regarding illegal content, especially for those infringing intellectual property rights, for Electronic Commerce Service Providers (“ECSP”) and Electronic Commerce Intermediary Service Providers (“ECISP”). In addition, the Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers (“Regulation”) was published on the Official Gazette No. 32058 on 29 December 2022, which gives further details and clarification with respect to operations and obligations of both ECSP and ECISP, in line with the Law.
Article 9 of the Law regulates the liability of ECISP for illegal content provided by ECSP. As per this Article, ECISP are not liable for illegal content unless they are notified by the right holder. Upon being notified, ECISP must remove an illegal content from electronic commerce media without delay. The Regulation explains the process in more detail and provides a maximum period of 48 hours for removal of an illegal content from electronic commerce media and notifying ECSP and the relevant public body. Furthermore, Article of 12 of the Regulation has introduced a new regime with respect to protection of intellectual property rights. According to Article 12, a right holder who claims that its intellectual and/or industrial property rights have been infringed is entitled to file a complaint to the ECISP through the internal communication system*, a notary public or a registered e-mail address.
The complaint can be filed by right holders themselves or their attorneys, and should include the following information:
- A registration certificate issued by the Turkish Patent or Trademark Office, or a banderole form issued by Ministry of Culture and Tourism, or a certificate of activity from professional associations within the scope of the Law on Intellectual Artistic Works No. 5846.
- Contact information of the complainant, namely; trade name, address, e-mail address and, if any, registered e-mail address.
o If the complaint is being filed by the representative of the right holder, a Power of Attorney is required.
- Evidence showing that the product is infringing the IP rights of the right holder.
- Website/link that shows the product subject to the complaint.
- Written undertaking stating that the complainant will be liable for any damages that may arise due to inaccurate information and/or documents presented with the complaint.
If there is any missing information, ECISP will notify the complainant. There is no time limit to complete the missing information, and also, a new complaint can always be filed again.
ECISP will remove the product within 48 hours from receipt of the complaint, and notify both the complainant and ECSP, which has listed the product subject to the complaint.
ECSP can file an objection against the complaint and there is no time limit specified in the Regulation for ECSP to file an objection. The objection, together with the afore-mentioned contact information and written undertaking, should include:
- Evidence showing that the product is not infringing the IP rights of the right holder.
- Invoice or similar documents which prove that the product is genuine, or a contract and/or any documents showing that the product is sold under the authorization of the right holder.
o In other words, the ECSP is required to prove exhaustion of rights.
If the objection is clearly justified by documents provided with the objection, ECISP will re-list the product back online within 24 hours upon receipt of the objection, and will notify both the right holder (the complainant) and the ECSP.
If the objection is justified and ECISP has put the product back online, according to the Article 14 of the Regulation, ECISP cannot process new complaints regarding the same product unless new evidence showing that the product is infringing IP rights of the right holder is provided.
Lastly, the parties have the right to pursue legal action before judicial and administrative authorities in line with the general provisions.
The said amendments to Article 9 of the Law No. 6563 and the introduction of the detailed provisions in the respective Regulation bring a certain level of clarity and expected to result in practicality and speed in terms of protection of IP Rights in the field of e-commerce. The result of ambiguities such as the use of the internal communication system, proving copyrights that cannot be the subject of a bandrol document or a certificate of activity from professional associations, evaluation criteria by ECISPs within a short period of 48 hours and likewise criteria for evaluation of objections by ECSPs, are yet to be seen in practice.
*Internal Communication System: A system created by ECISP to provide easy and free communication between ECISP and ECSP within e-commerce marketplaces.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.