Law No. 7416, amending E-Commerce Law, came into effect on 1 January 2023, and a comprehensive change has been made to Article 9, titled "obligations of intermediary service providers", including the title of the provision. Following this change, the title of Article 9 was changed to "illegal content". According to this article, unless there is a contrary provision in other laws, the general principle is that the intermediary service provider is not responsible for the illegality of the content. Nevertheless, the intermediary service provider is obliged to remove the content and to report the illegal issue to the relevant public institutions and organisations without delay if it becomes aware of the illegality of the content.
In the 3rd paragraph of Article 9, violation of IP rights is specifically regulated; the intermediary service provider is obliged to take down the product subject to the complaint upon the right owner's complaint based on information and documents regarding the violation of IP rights. If an objection is made to the contrary of the complaint, the intermediary service provider will republish the product subject to the complaint.
If the illegal content is not removed upon complaint, or if the content is republished despite being proved illegal, the intermediary service provider will be subject to an administrative fine from 10,000TL to 100,000TL for each violation.
A new regulation complementing Law No 7416 and explaining the takedown procedure upon receipt of a legitimate complaint by IP rights holders came into effect as of 1 January 2023 as well. According to this regulation:
- The complaints alleging IP rights infringement shall be made to the platforms through their internal communication system – which the platforms will establish- or Notary Public or Registered Electronic Mail.
- The platforms shall remove the complained product within 48 hours and inform the complainant and the service provider.
- The service provider is entitled to file an objection against the complaint.
- If the objection is rightfully based on the information and evidence provided, the platforms shall republish the complained product within 24 hours.
The new regulation clarifies many details of the complaint by IP rights holders to e-commerce platforms, as well as the counter-objection by e-commerce service providers to the related complaint, and aims to provide a balanced, foreseeable and fastmoving procedure to protect IP rights against infringement on e-commerce platforms. However, there are still ambiguities regarding the procedure that may create problems in practice. For instance, while the internal communication system to be established by the intermediary service provider would create a simple and functional tool to file complaints and objections, it arouses interest in whether such a system would fulfil the burden of proof.
On the other hand, it is seen that the intermediary service providers are given a very limited period to take action upon complaints and objections. Although these limits are determined to ensure the speed of examination, it may be very challenging for the intermediary service providers and bring speculation on the depth and accuracy of the platforms’ analysis on the merits of issues.
It seems that the complaint procedure to be addressed to the intermediary service provider would enable a fast-track solution and help the right holder take down the infringing products very quickly, and it is envisaged that this administrative fine will be deterrent and that the regulation of the IP rights’ violation in the law will motivate e-commerce sites to continue their activities in accordance with the law. Therefore, we consider this change in the E-Commerce Law a very positive development for IP rights holders.
*This article first appeared in WTR Daily, part of the World Trademark Review, in January 2023. For further information, please go to www.worldtrademarkreview.com.