SUPREME COURT DECISION ON THE LACK OF LIABILITY OF INTERMEDIARY SERVICE PROVIDERS ARISING FROM DEFECTIVE GOODS

A consumer applied to the Esenler Consumer Arbitration Committee Presidency requesting a refund after a cigarette butt was found inside a truffle package purchased from a bakery that sells its products on the marketplace platform www.ciceksepeti.com, operated by Çiçeksepeti İnternet Hizmetleri Anonim Şirketi (“Çiçek Sepeti”), where products produced or marketed by suppliers are sold and promoted.

Upon the decision of the Esenler Consumer Arbitration Committee Presidency (“Arbitration Committee”) dated 20.03.2019 and numbered 056120190000723, the consumer’s request was accepted.

Following the acceptance of the consumer’s request, Çiçek Sepeti filed an application before the Consumer Court (“Court”) requesting the annulment of the Arbitration Committee’s decision on the grounds that there was no legal relationship giving rise to liability between the parties and that Çiçek Sepeti lacked standing as the responsible party.

The Court dismissed the case, stating that the recourse relationship between Çiçek Sepeti and the supplier company constituted an internal relationship between the parties, and that the consumer seeking the service relied on the trust placed in the name and reputation of Çiçek Sepeti. Accordingly, the Court held that Çiçek Sepeti was liable for the defective product sold through its website.

Thereupon, the Ministry of Justice argued that although the liability of Çiçek Sepeti, which acts as a service provider offering services to consumers, cannot be assessed under the “Defective Goods” provisions of the Consumer Protection Law No. 6502 (“Law No. 6502”), the Court’s dismissal of the case on the grounds that Çiçek Sepeti was responsible for the services provided due to receiving commissions from the supplier company was contrary to law and procedure.

Accordingly, the Ministry of Justice requested that the relevant decision be reversed in the interest of law pursuant to Article 363/1 of the Code of Civil Procedure No. 6100.

The Supreme Court evaluated the provisions of Article 9 of the Law No. 6563 on the Regulation of Electronic Commerce (“Law No. 6563”), Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce, together with the circumstances of the concrete case.

The Supreme Court determined that Çiçek Sepeti, which provides an electronic commerce environment through the internet network, qualifies as an intermediary service provider, and that according to the preliminary information form of the distance sales agreement between the parties, the seller is the supplier.

In this context, it was concluded that the intermediary service provider:

• is not obliged to control the content provided by natural and legal persons using the electronic environment provided by the intermediary service provider;

• is not obliged to investigate whether there is any unlawful activity or situation related to such content or the goods or services subject to such content.

Accordingly, the Supreme Court ruled that Çiçek Sepeti, as an intermediary service provider, has no liability arising from the defective nature of the goods, and decided to reverse the decision in the interest of law without affecting the outcome of the case.

Assessment

In the present dispute, the Consumer Arbitration Committee held the company acting as an intermediary service provider responsible for the defective nature of the product purchased through the website.

Çiçek Sepeti subsequently requested the annulment of the Arbitration Committee’s decision regarding the refund of the purchase price.

Article 2 of Law No. 6563 defines an intermediary service provider as:

“Natural and legal persons who provide an electronic commerce environment for the economic and commercial activities of others.”

Article 13/1 of Law No. 6502 defines defective service as:

“A service that is contrary to the agreement due to the fact that it does not commence within the period specified in the agreement or does not possess the characteristics agreed upon by the parties or the characteristics it should objectively possess.”

When the relevant legal provisions are evaluated together, it is clear that service providers who are not parties to the agreement and merely act as intermediaries between the seller and the buyer cannot be held responsible for goods or services that are contrary to the agreement.

Indeed, Article 9/1 of Law No. 6563 stipulates:

“Intermediary service providers are not obliged to control the content provided by natural and legal persons using the electronic environment they provide services for, nor are they obliged to investigate whether there is any unlawful activity or situation related to such content and the goods or services subject to such content.”

Pursuant to this provision, intermediary service providers have no obligation to control or investigate the goods or services supplied by suppliers.

Therefore, a company acting as an intermediary service provider cannot be held liable for defective goods or services offered by suppliers using the electronic environment provided by such company.

Accordingly, the legal validity of the findings contained in the relevant court decision cannot be accepted.

Indeed, the Supreme Court determined that the liability of an intermediary service provider cannot be evaluated under Article 8 and the following provisions of Law No. 6502 titled “Defective Goods.”

The Supreme Court further stated that intermediary service providers are not obliged to:

• control the content provided by natural and legal persons using the electronic environment in which services are provided;

• investigate whether there is any unlawful activity or situation related to such content and the goods or services subject to such content.

Based on these findings, the Supreme Court accepted the request for reversal in the interest of law.

The relevant Supreme Court decision is highly significant in terms of:

• establishing uniformity in judicial practice regarding the legal position of intermediary service providers;

• clarifying that intermediary service providers are not liable for defective goods or services offered by suppliers who are the contractual counterparties of consumers;

• serving as a precedent for similar disputes arising in the field of electronic commerce.

Submitted for your information and consideration.