Upon significant improvements in technology and the internet over the last decade, new marketing and sale-purchase techniques, as well as consumer habits with the exclusive use of one or more means of distance communication such as internet, phone, mail order and fax, etc., have become familiar and are frequently used as shopping methods for all. In this context, although consumers deal with and/or invariably concede to be involved in distance and off-premise transactions, the level and strategy of consumer protection has always been in question.
The escalating e-commerce transactions sparked the need for legislation - in this specific field which was first seen on 2003 by the passage of the Law No. 4822 which amended the "Law on the Protection of the Consumer" No. 4077 (the "Law No. 4077"). The Law No. 4077 had introduced the concept of "Distance Contracts" to Turkish law and had almost left the practice and detailed provisions to the Regulation dated 13 June 2003 of the previously named Ministry of Industry and Commerce [now the Ministry of Customs and Commerce] (the "Ministry") on aspects of distance contracts and consumer rights. Afterwards, considering the significantly developing market and rising need for consumer protection, the Ministry abolished the mentioned Regulation of 2003 and the "Regulation on Distance Contracts" (the "Regulation") which had expanded the scope of Law No.4077 in consumers' favor which had entered into force on 6 March 2011. The Regulation set forth detailed provisions, especially for information requirements of distance traders and providers, and consumers' right of withdrawal. Distance contracts are defined within the scope of the Regulation as: "contracts executed on written, visual, telephone and electronic environments or other communication means without confronting consumers and to deliver the product or service to the consumer instantly or subsequently".
However, the "Law on the Protection of Consumer" No. 6502 ("Law No. 6502") has been published abolishing the previous Law No. 4077 on 7 November 2013 in order to enter into force with a 6 months postponement period. Therefore, the Law No. 6502, being in force as of 28 May 2014, has brought a new definition for distance contracts within its Article No. 48 as "contracts which are concluded between the trader and/or the provider and the consumer without physical presence of the parties under an organized system for distance marketing of goods or services up to and including the time at which the contract is concluded with the use of distance communication devices". The reasoning of Article 48 of the Law No. 6502 entitled 'Distance Contracts' ("Article 48") openly states that distance contracts contain certain risks for consumers and the legislation is made in accordance with the European Parliament and Council Directive No. 2011/83/EU on the Consumer Rights, dated 25 October 2011 (the "Directive"). In general, the Law No. 6502 maintains and focuses on the purpose of a high level of consumer protection and leads provisions for the traders'/providers' information requirements and for the consumers' right of withdrawal in compliance with the Directive.
Although the Ministry seems to publish new secondary legislations in line with the Law No.6502, as per some provisions of the Law No. 6502, the Regulation is still in force and applicable for now. However, as the regulation is yet to be published, it shall be accepted that currently there is a loophole in the legislation as the law itself and the regulation contradicts one another on certain provisions. In practice, while the Regulation is still applicable up to adopting secondary legislation for well-established practice, the Directive which includes more detailed and practical provisions may be considered as guidance and the information requirement and the right of withdrawal may be assessed in accordance with the general rules, and especially 'standardized terms' provisions of the Law of Obligations No. 6098.
Article 48 regulates the information requirement by stating that the consumer is to be adequately informed and enlightened by the trader of: (i) the details of the contract, and (ii) the fact that the consumer will undertake the obligation to pay, if they proceed with the distance ordering. In compliance with the purpose of the Law for consumer protection, informing and enlightening are stipulated as requirements and obligations for traders and providers, accordingly. The burden of proof regarding information requirements as well as the clarification for the exercise of the right of withdrawal is on the trader or provider. Moreover, the Regulation which is still applicable to the point sets forth that the consumer shall be informed on the following items prior to the execution of a distance contract:
- Identity and contact information of trader or provider,
- Essential features of goods or services,
- Price, cost and tax details,
- Delivery fees if any,
- Information on the payment and delivery or performance,
- Terms and conditions on exercise of right of withdrawal,
- Fees and charges for distance communication usage (e.g. telephone charges etc.) if such fees are aside from regular charges,
- Term of the validity of the obligations regarding goods and services including pricing,
- Minimum term if agreed periodical or continuous performance,
- Termination terms and conditions for contracts of indefinite or more than one year periods.
The trader or the provider is obliged to deliver the goods and services subject to the distance contract within the pledged period following the order. If the contract is concluded regarding the sale of goods, the relevant pledged period can be no longer than 30 days unless a shorter period is given. If the trader or the provider fails to perform within the pledged period, the consumer may terminate the contract. The previous legislation used to give an additional 10 days to the trader in condition of serving a prior written notification upon the consumer. However, Article 48 repealed this rule and practice, making the Regulation outdated in this sense. Therefore, if the goods are not delivered or the services are not performed within the pledged periods, the consumer would have the option to freely terminate and/or to receive the goods and/or services.
Article 48 also covers the consumer's right of withdrawal and sets forth the principle that consumers are entitled to the right to withdraw from the contract within 14 days of the execution date without relying upon any reason or being subject to any penalties. It is sufficient to notify the trader or the provider with the intention to withdraw from the contract within the given time. In addition, the trader or the provider is under the obligation to inform the consumer regarding the exercise of the right of withdrawal; if this required information is not provided prior to performance of the contract, the consumer is not subject to the 14 day-period for withdrawing from the contract. In any case, the time of withdrawing may not exceed one year from the performance date. However, if the trader or the provider duly informs the consumer of its right of withdrawal after the performance, the 14 day-period would be running from the date in which the required information is made. Moreover, the consumer is not to be held liable from any alterations and deformations arising from the normal use of the goods within the period for the right of withdrawal.
The Law No. 6502 has also brought liability and obligations for the agents establishing an organized system for distance transactions. These agents are obliged to hold records of the transactions and to provide these records to public authorities and consumers. These agents are also held liable for their actions before consumers depending on the fact that they collect price, fee and costs.
The Law No. 6502 and its Article 48 regulating 'Distance Contracts' along with the Regulation promulgated thereunder set forth certain instruments to mitigate consumer risk when entering into a distance contract. Distance contracts are riskier for consumers, and current online shopping practice requires regulations for a high level of consumer protection, as they are most probably executing the contract without being able to personally observe both the product or the service and the trader or the provider. The conclusion of the contract and the agreed terms and conditions are subject to a different form and usage which are almost always established ignoring consumers' attention and consideration.
Therefore, especially in light of the approach for information requirements and the consumers' right of withdrawal, the current legislation has met principal needs for better consumer protection. However, bear in mind that the current legislation does not bounce an idea for some large scaled practice areas such as cross-borders purchases,
conflict of laws, and consumers' easy collection methods for payment reimbursement and additional compensation. Although such disputes may be resolved through general principles and law, to guarantee a better consumer protection necessity for a new regulation stands so it reflects the new amendments, as inscribed within Article 48 of the Law No. 6502. As a rapidly developing market, the new legislation has to keep up with the developments to meet the newly emerging needs of the consumers.
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.
