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Responsibility Of Intermediary Service Provider For Defective Products Purchased Electronically. 06 February 2022

ON 15.11.2021, REGARDING THE LIABILITY OF THE SERVICE PROVIDER, 3rd LEGAL DEPARTMENT OF HIGH COURT DECIDED THAT THE INTERMEDIATE SERVICE PROVIDER IS NOT RESPONSIBLE FOR THE DEFICIENCY OF THE PRODUCTS WHICH ARE PURCHASED ELECTRONICALLY.

1. According to Article 2 of the Law on the Regulation of Electronical Commerce, which came into force on 01.05.2015, with the headline "Definitions" states that; service provider means 'Real or legal persons engaged in electronic commerce activities', intermediary service provider means 'real and legal persons who provide the electronic commerce environment for the economic and commercial activities of others'. In the decision, which is based on the examination of the responsibility attributed to real and legal persons defined within the scope of this law, after the purchasing of the product from the intermediary service provider's website the package was sent to the buyer by a registered "patisserie" of the site. Following the delivery, it was discovered that a cigarette butt came out from the package and accordingly, the responsibility for the defective product was examined.

Today, it is obvious that commercial and daily life is gradually shifting towards the virtual environment. At this point, classifying the responsibility attributed for the products purchased over internet has become a difficult issue to dissect. In line with the developments, the work of legislators and related institutions carries crucial importance. The relevant event, which is the subject of our bulletin, has become even more critical due to the direction of today's understanding of consumption.

In the concrete case, the plaintiff, who objected to the decision of the Esenler Consumer Arbitration Committee, stated that they have only mediated through the website where the plaintiff offered services to real or legal persons conducting sales activities. The defendant's application for a refund due to the defective product was accepted by the Consumer Arbitration Committee with the decision dated 20.03.2019 and numbered 056120190000723. The request of the intermediary institution, which objected to the decision regarding the refund, was rejected by the court of first degree. The reason for the refusal arises from the fact that the buyer receives service by relying on the name of the intermediary service provider. In the decision, the court further stated the basis for the refusal as the internal relationship between the plaintiff and the company providing the supply, thus, the issue of recourse is also not applicable since this relationship is subject to the internal affairs of the intermediary and the supplier.

Following this, in the letter of the Ministry of Justice dated 17/03/2021; Although it is not possible to deal with the liability of the plaintiff company, which is not a seller, importer or manufacturer, but is a service provider to the consumer, in accordance with Articles 8 and the following, with the title of "Defective Goods" in the First Chapter of the Third Part of the Law on the Protection of the Consumer, It has been argued that the dismissal of the lawsuit on the grounds that the company is responsible for the services rendered due to commission received from the supplier company is contrary to the procedure and the law.

All of the above-mentioned materials were evaluated by the High Court. The Court analyzed the issue that caused the dispute as the liability regarding the defect in the products purchased electronically and started its examinations accordingly.

Evaluating the issue, the High Court first made analyzes within the framework of Article 13 of the Law on the Protection of the Consumer. According to the first paragraph of the relevant article, “Defective service is a service that is contrary to the contract because it does not start within the time specified in the contract or does not have the features that are agreed by the parties that it should have objectively.” Again, in accordance with Article 11 of the same Law, the responsibility of the seller, the manufacturer and the importer for the defective goods and the responsibility of the consumer for the optional rights are stated in this article.

According to Article 2 of the Law on the Regulation of Electronic Commerce, which entered into force on 01.05.2015, in the title "Definitions", service provider means; 'Real or legal persons engaged in electronic commerce'. The intermediary service provider, which is defined in the continuation of the article, refers to the real and legal persons who provide the electronic commerce environment for the economic and commercial activities of others.

Responsibility of Intermediary Service Providers, defined in Article 9 of the same law, is also stated in paragraph 4 of Article 6 of the same law as; “(4) The intermediary service provider is not obliged to check the content provided by real and legal persons using the electronic environment it provides services through, or to investigate whether there is an unlawful activity or situation related to this content and the goods or services subject to the content.”

With this approach of the High Court, the responsibility automatically attributed to institutions that only act as intermediaries, and the obligation of recourse that arises accordingly, has been eliminated and a more direct causal link has been established between the parties. Thus, the 6th and 9th articles of the Law on the Regulation of Electronic Commerce were evaluated together and considering that the plaintiff, who is the intermediary service provider, is not responsible for the defective goods, a verdict has to be given for the acceptance of the case. The appeal request of the Ministry of Justice advocating regarding this aspect of the law has been accepted.

As a result, with the decision taken, the approach of the Consumer Arbitration Committee, which holds the intermediary institutions directly responsible, was found to be faulty and the foundations for a more balanced regime between the Consumer and the Intermediary Institution were laid. Thanks to this approach of the Court of Cassation, institutions and organizations that carry out intermediary activities by receiving commissions on their own website are evaluated according to strict liability before the Arbitration Committees, and with this decision, the responsibility of the intermediary has been reduced and the responsibility relationship between the parties has been classified more clearly.
 

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