Evaluation of the safe harbor defense regarding electronic commerce intermediary service providers with respect to defective goods

Since the official declaration of the pandemic, increasing e-commerce applications have allowed parties to easily carry out their commercial activities without physically coming together. However, legal gaps regarding e-commerce applications have caused buyers (consumers/persons acting for commercial or professional purposes) who are parties to the sales contract to lose their rights. The safe harbor defense, which provides electronic commerce intermediary service providers (ECISP) with the opportunity to escape liability in Article 9 of the Law No. 6563 on the Regulation of Electronic Commerce, which regulates the principles and procedures regarding electronic commerce in our country, creates a major obstacle for online platform users to apply to ECISP, which is the sole interlocutor in the supply chain, especially for sellers whose identity cannot be determined or who are under the jurisdiction of a country other than the buyer's country, in the event that the sales contract is not performed as required. For this reason, in the first part of our study, we will examine the definition, classification of ECISP, the business models they are subject to and their legal obligations; In the second part, we will discuss the definition and scope of the safe harbour defense, the exemption agreements included in the user agreements established between users and ECISP, sample decisions within the framework of comparative law and how the safe harbour defense can be eliminated in line with the identity of ECISP.