WHAT IS THE MESSAGE MANAGEMENT SYSTEM (“IYS”)?

The real and legal persons who want to send commercial
electronic messages (service providers) has to obtain opt-in
consent of recipients before sending any
commercial/marketing/advertisement messages under Article 6 of the
Law on Regulation of Electronic Commerce w.no 6563
(“the Law”). Commercial
electronic messages are defined as “messages sent
to electronic communication addresses (including audio calls) of
recipients, for the purpose of promoting or advertising a product,
service or business, and/or to increase the reputation
ofsuch through content including a greeting or a
wish” in the Regulation on Commercial Communication and
Commercial Electronic Messages (“the
Regulation”). On January 4, 2020, the amendment to
Article 5 of the Regulation stipulated a registration obligation to
Message Management System (“IYS”) for
all service providers that send commercial electronic messages. IYS
aims to collect all opt-in consents in a single database accessible
both by the service providers and the recipients. The recipients
can easily manage their consents provided to various service
providers via IYS. IYS also allows the recipients to file
complaints against unlawful communications under the Law and
Regulation. All opt-in consent processes regarding commercial
electronic messages will be carried out via IYS in the new
system.

This new system is somewhat similar to Robinson list practices
across the world. A Robinson list is a list where people who do not
wish to receive marketing messages may enlist in; Belgian Robinson
list, British Telephone Preference Service, Canadian Do Not Call
List, Italian Registro Pubblico delle Opposizioni (“Public
Registry of Oppositions”) French liste orange, New Zealand
Name Removal Service, Spanish Robinson list, UK Mailing Preference
Service, United States National Do Not Call Registry, Australian Do
Not Call Register.

THE ISSUES TO BE CONSIDERED

All service providers that want to send commercial electronic
messages are obliged to register with IYS. After the registration,
service providers shall enter the opt-in consents they have
previously obtained into the system. All recipients to whom
commercial messages (advertisement, congratulations, promotion,
etc.) have been sent should be listed and the recipient’s
contact address, consent type, consent date, communication channel
(call/message/e-mail), and consent source should be determined.

The deadline for the service providers to register with IYS and
to upload previously collected opt-in consents of recipients, is
September 1, 2020. Opt-in consents that were not entered into the
IYS will be deemed invalid. The recipients will be able to check
and approve/object against the opt-in consents regarding themselves
between September 1, 2020 – l December 1, 2020. In the new system,
commercial electronic messages will not be sent to those whose
opt-in consent has not been determined via IYS.

At this point, one of the important issues is that the burden of
proof regarding the opt-in consents to be uploaded to the IYS shall
be at the service provider until September 1, 2020. For this
reason, service providers must check and make sure that they have
received opt-in consent prior to transferring the user into the
approved list in the İYS.

The burden of proof will be on İYS regarding the opt-in
consents received through the İYS after September 1, 2020.

The Process of Obtaining Opt-in Consent:

Once opt-in consent is obtained in the electronic medium, it is
required to send a confirmation e-mail to recipients within 24
hours and provide the chance to opt-out.

The opt-in consent that is obtained in electronic format or in
writing must contain; – the positive declaration of the receiver, –
name and surname, – electronic contact address. The opt-in consent
that is obtained in writing physically must contain the signature
of the recipient as well.

• It is required to report opt-in consents to IYS within 3
  business days as of obtaining. All opt-in consents which were not
  reported to IYS will be deemed invalid.

• It is not possible to request consent by sending messages/emails
  to recipients

• The opt-in checkbox must not be pre-ticked.

• The opt-in cannot be a prerequisite for service and good
  provided.

• If consent is being obtained as a part of an agreement
  (membership, sale, etc.), the opt-in must be separate.

• The context of the commercial electronic message has to be in
  accordance with opt-in consent obtained.

Opt-out Requests of Recipients:

Recipients can submit their opt-out requests via IYS. Also,
opt-out requests which are not received through IYS must be
reported to IYS within three (3) business days. Sending commercial
electronic messages must be stopped within three (3) business days
as of receiving the opt-out request of the recipient.

• Every marketing message shall provide the recipient the ability
  to opt-out of further messages.

• It is required to provide an easy and free chance to
  opt-out.

• All messages must contain information about the sender such as
  the Mersis number, name of the entity and accessible contact
  information etc.

• The recipients are not required to provide a reason when
  opting-out.

Intermediary Service Providers:

Service providers can also send commercial electronic messages
through intermediary service providers. However, intermediary
service providers cannot obtain opt-in consent from recipients to
promote or market other party’s products.

The intermediary service provider must 1) not send commercial
electronic messages on behalf of service providers who are not
registered with IYS, 2) check whether the opt-in consent of the
recipient is available on IYS when sending commercial electronic
messages on behalf of service providers.

Exemptions:

Obtaining opt-in consent is not necessary for commercial
electronic messages if it:

• Relates to change, use and maintenance of goods and services
  where the recipient has voluntarily given his/her communication
  information as part of the application, agreement, subscription
  etc.

• Relates to collection matters, debt reminders, information
  updates, purchases, delivery and similar actions with respect to an
  ongoing subscription, membership or partnership.

• Is sent to merchants and craftsmen. However, these people should
  also be registered with IYS and, it required to be checked whether
  they exercise their right to opt-out.

• Is an information message sent to customers by a company which
  conducts intermediary activities in accordance with Capital Market
  Legislation.

Complaint Process:

If a breach of the Regulation occurs, recipients can file a
complaint via IYS within three months of the message’s sending
date. Also, complaints can be filed to the Provincial Directorate
in the recipient’s domicile in writing or via the
Ministry’s website and e-Government gateway.

Since those who do not fulfill their obligations within the
scope of the Regulation will face an administrative fine, the
service providers required to comply with new amendments.

TIMELINE REGARDING IYS

HOW TO MAKE REGISTRATION APPLICATION?

Applications to IYS can be made by filling out the application
form on the IYS website. During registration, a person authorized
to represent the service provider must be appointed.

The following information is requested when making
registration application;

• the MERSIS number of the company and registration documents of
  trademarks (and electronically signed Undertaking
  on the Use of Main Services of IYS)

• the ID number, mobile phone number, the corporate e-mail address
  of the authorized representative.

The number of registered approved electronic contact address
based on the relevant trademark may also be downloaded to the IYS,
if the service provider wishes.

Stages of Application:

Foreign service providers are required to submit the following
documentation: (i) circular of signature, (ii) trade registry
certificate/commercial activity certificate and (iii) signed
version of “
an undertaking on the use of main services of
IYS.”

Originally published 21 August, 2020

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.

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