An intermediary service provider is defined in Law No. 6563 on the Regulation of Electronic Commerce ["E-Commerce Law"] as "natural or legal persons that provide an electronic environment where others can conduct financial and commercial activities.” Electronic commerce platforms such as n11, Trendyol, GittiGidiyor, and Amazon, which are among the most important actors of electronic commerce today, are included in this definition under our legislation. In essence, these platforms mediate the contract's conclusion and performance by bringing buyers and sellers together via the internet. In this article, the liabilities of e-commerce actors as "intermediary service providers" will be discussed in light of recent Court of Cassation decisions.
I. Liabilities Arising from E-Commerce Law
The E-Commerce Law imposes some obligations on intermediary service providers to create the environment of trust necessary for the proper conduct of electronic commerce, and the intermediary service providers' liability for the transactions they conduct is limited to these obligations. Accordingly, the intermediary service provider is responsible of disclosing the relevant information determined by the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce [“Regulation”] to the buyers, protecting personal data, sending order notifications, and maintaining transaction records.
The intermediary service provider is not responsible of inspecting the content provided by users of its electronic environment, nor is it responsible of deciding on the legality of the goods or services provided via this content. 3rd Civil Chamber of the Court of Cassation also decided likewise in a judgment issued in 2021. According to the judgment, Çiçeksepeti could not be held liable for the content provided by the users since intermediary service providers are not obliged to investigate the defectivity of the goods and services subject to the sales contract between the seller and the buyer.
Nevertheless, intermediary service providers may be held liable for defective good or services if they violate their obligations in providing services to consumers as stipulated in the E-Commerce Law and detailed in the Regulation. Given that the intermediary service provider, due to its obligation to provide information, must ensure that the sellers [i.e., the service providers] present all the information required by the Regulation, in its decision, the 13th Civil Chamber of the Court of Cassation held GittiGidiyor liable for defective services.
II. Liabilities Arising from the Consumer Protection Law
Intermediary service providers are considered as "intermediaries in the establishment of distance contracts" within the framework of the Consumer Protection Law No. 6502 ["CPL"]. Since intermediary service providers are not parties to the distance sales contract between the seller or service provider and the consumer, their responsibility under CPL is limited to maintaining transaction records and disclosing this information when required. However, they may still be held liable for breach of contract with the seller or service provider.
In practice, the framework of services offered by intermediary service providers to buyers and sellers is usually drawn under "service conditions" or a "membership agreement". Nevertheless, technical issues such as the provision of preliminary information and transfer of funds should be fulfilled through the systems of the electronic commerce platform in accordance with the Regulation on Distance Contracts. Thus, even in the absence of any conditions provided by the intermediary service provider, intermediary service providers and consumers are, beyond doubt, parties to a service agreement in the context of the CPL. However, unless provided otherwise, the liability of the platform is limited to matters such as keeping transaction records, providing information, and presenting the preliminary information form to the consumer. As a result, under CPL, the intermediary service provider is not responsible of ensuring the rights provided by distance sales contracts, such as the right to request a refund or replacement in case of defective goods or through the exercise of the right of withdrawal.
III. Prudent Business Man Rule
According to the Turkish Commercial Code No. 6102, merchants are obliged to act as a prudent businessman in their trade. In terms of intermediary service providers, this obligation originates from the fact that consumers primarily put their trust in the platform rather than the seller while shopping on electronic commerce platforms. Since consumers expect that the intermediary service provider has acted as a prudent businessman and created a business model that could not be abused by sellers in bad faith, they expect to have the support of the platform in a dispute against the seller. Hence, the platform can only avoid liability in the event of illegality originating from the seller by proving it has taken all necessary measures, as a prudent man would.
By virtue of this obligation, it is possible for the consumer, who has been negatively affected by the actions of the seller, to seek compensation from the intermediary service provider. A court decision in 2018 against GittiGidiyor sets a precedent regarding the intermediary service provider's obligation to act as a prudent businessman. The Court of Cassation upheld the decision of the Court of First Instance, holding that the intermediary service provider is obliged to investigate the reliability of the sellers on the platform and is liable for the consumer's losses caused by seller fraud. According to the court, the consumer puts trust in the brand of the platform, and for this reason, the platform must be held liable if it "aggrieves consumers by providing a venue for those who act maliciously and with fraudulent intent.”
In summary, intermediary service providers, one of the most important actors of electronic commerce, are responsible of providing information, protecting personal data, sending order notifications, keeping transaction records, and generally acting as a prudent businessman. Moreover, intermediary service providers must also investigate the reliability of the sellers and service providers on the platform as a part of their obligation to act as prudent businessmen. Therefore, even though they are not a party to the distance sales contract, they can be held liable for the consumer's losses resulting from the violation of this obligation.
By Zahide Altunbas Sancak, Partner, Guleryuz & Partners