Obligations and legal liability towards the buyer of intermediary service providers providing an electronic commerce environment on the internet

Electronic communication tools are frequently used in order to carry out commercial activities. Even if electronic commerce (e-commerce) does not completely replace traditional commerce, a significant part of daily shopping is carried out electronically. In a broad sense, electronic commerce includes commercial communication activities such as advertising, promotion and marketing of goods and services, announcement of campaigns, placement of orders, and establishment of electronic contracts or execution of contracts in electronic environment. In a narrow sense, electronic commerce is the establishment of contracts on goods and services in electronic environment. The aspects of electronic commerce activity that differ from traditional commerce require new regulations to be made in national laws and in the international community legal order. This requirement has been met especially in the European Union (EU), which has adopted the perspective of common market. Due to the harmonization process, electronic commerce regulations issued by the EU are especially taken into account when making regulations regarding electronic commerce in Turkish law. However, due to the increasing prevalence of electronic commerce, new kinds of disputes arise in this field. Apart from the inadequacy of the existing legal rules for the resolution of these disputes, it is seen that even the regulations made a few years ago cannot solve the new problems that have arisen in the legal area. Therefore, recently, new regulations have been made in both Turkish and EU law on electronic commerce, especially the responsibility of intermediary service providers. As in every developing field, electronic commerce is shaped around its own unique concepts. To understand these concepts is essential for the solution of emerging legal problems. The parties to the electronic commerce activity are the buyer and the service provider. However, most of the time, the buyer and the service provider come together in the electronic commerce environment operated by an intermediary service provider. The intermediary service provider promises to provide a secure electronic commerce environment for the parties. In most of the electronic commerce platforms, the intermediary service provider also undertakes to mediate the conclusion of electronic contracts. Platforms that provide intermediary services for the conclusion of contracts are in the nature of electronic marketplaces. According to Turkish Code of Obligations Art. 2, good faith should be on the basis for all legal relations and for the fulfillment of all rights and obligations. Electronic commerce activity takes place in an environment where the parties do not come together physically. For this reason, the service provider that provides goods and services must convey the information about the contract to be established, the terms of the contract and the goods or services that are the subject of the contract, to the buyer before the contract is concluded. Considering this issue, the law-maker has legislated some information obligations for the service provider. These obligations have some exceptions in cases where the receiving party is not a consumer or electronic means that allow the parties to communicate directly and conclude a contract are used. In addition, the service provider must also fulfill obligations regarding commercial communication and the protection of personal data. The intermediary service provider mediates the conclusion of a contract without the parties knowing each other and without any examination by the buyer of the goods or services, which are displayed on the electronic platform. For this reason, the obligations imposed on the service provider are also imposed on the intermediary service provider, and it is stipulated that the intermediary service provider must ensure the fulfillment of the service provider's obligations. When intermediary services on internet environment is mentioned, intermediaries other than intermediary service providers come to mind. Foremost among these are the access and hosting providers that mediate the access of the users to the content on the internet. Access providers provide the necessary infrastructure for users to access and connect to the internet environment. Hosting providers, on the other hand, provide or operate systems that host these contents in order to present the contents to users on the internet. Since the activities of access and hosting providers are of a technical nature, these intermediaries are generally passive in terms of content displayed on the Internet. The obligations and responsibilities of access and hosting providers are regulated separately from the electronic commerce legislation. The most important obligations of these intermediaries are to ensure that, in the case of existence of an illegal content, access and hosting providers prevent access to these contents. On the other hand, it is not possible for the access and hosting provider, which takes part in the technical and passive part of the activity of presenting the content to the users, to control the constantly increasing and renewed content. Therefore, in principle, intermediaries are not responsible for the illegality of the content. However, the agents who adopt the content or aim the accessibility of the content cannot benefit from the limitation of liability. Intermediary service providers generally perform their intermediation activities on a website or mobile application that they operate. In this e-commerce platform, third party service providers bring information about their goods and services to potential buyers. Most of the time, even the contract about goods and services is concluded on this platform. In addition to all these services, many intermediary service providers provide storage of the goods and also transportation of the goods. The intermediary activity of intermediary service providers should be subject to a different liability regime than access and hosting providers, since these providers are in a more intense relationship with the goods or service, which are subject to the content displayed on internet, compared to other internet intermediaries. At this point, it is also necessary to mention the interests of the intermediary service provider regarding the intermediary service they offer. Advertising revenues increase as the goods and services available on their platforms become more popular. Besides, the platform is becoming attractive for both service providers and buyers. The most important benefit and source of income directly provided by the intermediary service provider is the commissions it receives over the contract price concluded on the platform. For all these reasons, intermediary service providers apply and announce various campaigns and discount opportunities to attract buyers to their e-commerce platform. In Turkish law, the responsibility of the intermediary service provider is regulated in the legislation on electronic commerce. With these regulations, which can be considered relatively new, exemption from the content control obligation was stipulated for intermediary service providers, just as other internet intermediaries. This regulation provided an exemption from liability but was not sufficient to set the limits of the intermediary service provider's liability. The amendment made in the electronic commerce legislation, on the other hand, brought absolute nonliability for the content and the illegality arising from the goods and services displayed on the platform of the intermediary service provider. In addition to the benefit that the intermediary service provider derives from the intermediary activity, in practice it has a great domination on the service providers. For this reason, it would be unfair to benefit from absolute nonliability, even if the nonliability is expressly stipulated in the law. When the foreign court decisions are examined, it is seen that sometimes it is decided that the intermediary service provider has responsibility, taking into account various legal reasons. When the decisions of the American Court of Appeals are analyzed, the relationship of the intermediary platform with the contract and the goods subject to the contract is evaluated and a decision is made as to whether the damage caused by the goods can be attributed to this platform. The proceeding is held in accordance with the law of the relevant state and whether the intermediary platform acts as a seller is examined. Except for one decision on the other way around, it is generally decided that the platform cannot be considered as a seller and therefore cannot be held responsible. Another important point mentioned in some of these decisions is that it is not possible to apply the federal law provision, which regulates the principle of nonliability due to the content provided by another content provider, in terms of the platform owner, which is sought to be applied as a seller. Considering the concepts of seller and provider in terms of consumer law, the intermediary service provider, who is not a party to the contract, will not be liable like the party to the contract. It is possible to make a similar interpretation in terms of the sales contract regulated in the law of obligations. However, it can be argued that there is a contractual relationship between the intermediary service provider and the buyer. As a matter of fact, the intermediary service provider promises to provide the buyer with the service of conclusion of contracts and making secure payments through its own platform. The buyer, on the other hand, chooses to shop on that platform and concludes a contract with the service provider. Thus, a contract is concluded with the tacit will of the parties (buyer and intermediary service provider). In order to accept that a contractual relationship has been concluded, the buyer does not even need to accept a contract to become a member of the intermediary service provider's website. When the buyer is considered as consumer, the intermediary service provider providing the intermediary service will also be considered as a provider in terms of consumer law. Considering its definition in Turkish law, electronic commerce is not limited to contracts concluded with consumers over the internet. However, in practice, the majority of electronic commerce transactions are contracts in the nature of consumer transactions made over the internet, which is the most widely used open network. These contracts are called electronic contracts in terms of their form of conclusion because they are concluded in the electronic environment. Since there is no separate regulation in the law regarding the conclusion of electronic contracts and their qualification according to their content, the type of contract and the moment of conclusion of the contract are determined according to the provisions of the law of obligations. Another feature of the contracts established on the e-commerce platform is that they are adhesion contracts. This means that the buyer (even the service provider, in terms of contracts concluded through the intermediary service provider) cannot affect the content of the contract prepared by the intermediary service provider and signed by all users. Therefore, the provisions regarding the standardized terms of contract regulated in the law of obligations are applicable for these contracts. Finally, as just mentioned, these contracts will also be distance contracts in accordance with consumer legislation, as the buyer is often a consumer in these contracts. The issue of the responsibility of those who mediate the establishment of distance contracts, which are consumer transactions, has recently been amended in consumer law. This regulation is an exception to the nonliability of the intermediary service provider in electronic commerce legislation. However, while applying this regulation, it is necessary to be careful in accordance with the principle of relativity of the contracts, especially in terms of the rights that the consumer will use against the seller or supplier. In this respect, the responsibility of the intermediary should not be considered as the responsibility arising from the violation of the distance contract, but as the responsibility arising from the failure of the expected interest with the conclusion of the distance contract or from the damage arising from the same reason. The source of this responsibility, on the other hand, is the contractual relationship between the intermediary service provider and the buyer, who is invited to the platform, with the tacit will of the parties, in parallel with the contract concluded between the buyer and the service provider. With the amendment to the law, absolute nonliability is stipulated in the law for the intermediary service provider in terms of content and the goods and services subject to the content. However, according to another new provision, the intermediary service provider, who is aware of or is informed of the illegality of the content, is obliged to remove this content from its platform. There isn't a regulation as to whether the intermediary service provider who does not prevent access to the content by unpublishing will be liable. No exception has been made to the regulation regarding the nonliability of the intermediary service provider who gets aforementioned benefits from the intermediary service. Nonetheless, a legal relationship is established between the intermediary service provider and the buyer. This relationship can be described as a sui generis service contract, which comprises services such as providing a secure e- commerce environment, mediating the establishment of a contract, or collecting the contract price from the buyer and transferring it to the service provider. Even if this opinion is not accepted, it is possible to apply the responsibility of the intermediary service provider by using legal institutions such as the theory of trust, liability of trust or guarantee of performance by third party, depending on the characteristics of the concrete case.