Supreme Court Decision On Liability Of Intermediary Service Providers For Defective Goods
A Consumer has applied to the Esenler Consumer Arbitration Committee for a refund after a cigarette butt was found in the truffle package he bought from a bakery that sells their products on the marketplace platform called www.ciceksepeti.com created by Çiçeksepeti İnternet Hizmetleri Anonim Şirketi (“Çiçek Sepeti”) where the products produced or marketed by the suppliers are sold and promoted. With the decision of the Esenler Consumer Arbitration Committee (“Arbitration Committee”) dated 20.03.2019 and numbered 056120190000723 the consumer’s request was accepted. Upon the acceptance of the relevant request, Çiçek Sepeti applied to the Consumer Court (Court) for the annulment of the Arbitration Committee’s decision due to the absence of hostility from the parties.
The Court decided to reject the case on the grounds that Çiçek Sepeti is responsible for the defective product sold on the website, stating that the recourse relationship between Çiçek Sepeti and the supplier is its own internal relationship, and that the consumer who is trying to get services is trying to get the service with confidence in the name of the Çiçek Sepeti.
Thereupon, the Ministry of Justice stated that although it is not possible to evaluate the liability of Çiçek Sepeti who provides service to consumer, according to the “Defective Goods” section of the Consumer Protection Law No. 6502 the dismission of the case because of it is responsible for the services on account of the fact that it gets a commission from the supplier company was contrary to the procedure and the law, and requested that the relevant decision be reversed for the sake of the law according to Article 363/1 of the Code of Civil Procedure No. 6100.
The Supreme Court accepted the appeal for the sake of the law and decided to reverse the decision for the sake of the law, without being effective in the outcome on the grounds that Çiçek Sepeti, the intermediary service provider, was not responsible for the defective goods. In the justification of the decision, in accordance with Article 9 of the Law on The Regulation Of Electronic Commerce No. 6563 (“Law No. 6563”) and Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce dated 26.08.2015, that Çiçek Sepeti is a intermediary service provider and the seller is a supplier according to the pre-information form of the distant sales contract between the parties, and to control the content provided by the natural and legal persons using the electronic environment provided by the intermediary service provider; and is not obliged to investigate whether there is an unlawful activity or situation related to this content and the goods or services subject to the content.
In the concrete dispute, the Arbitration Committee held the company, which is the intermediary service provider, responsible for the defective product purchased through the website, and Çiçek Sepeti requested the cancellation of the Arbitration Committee’s decision regarding the refund.
In Article 2 of the Law No. 6563 intermediary service providers are defined as “natural and legal persons who provide the electronic commerce environment for the economic and commercial activities of others.” According to Article 13/1 of the Law No. 6502 the defective service is defined as a service that is contrary to the agreement due to the fact that it does not start within the period specified in the agreement or not have the features that are agreed by the parties and that it should have objectively. When the relevant regulations are evaluated together, it is clear that service providers who are not parties to the agreement and only act as intermediaries between the seller and the buyer can not be responsible for the service that is in violation of the agreement. As a matter of fact, Article 9/1 of the Law No. 6563 states that “Intermediary service providers are not obliged to check the content provided by natural and legal persons using the electronic environment they serve and to investigate whether there is an illegal activity or situation related to this content and the goods or services subject to the content.” In accordance with the relevant regulation, intermediary service providers have no obligation to control or investigate goods or services provided by suppliers. In this context a company that is and intermediary service provider shall not be liable for the defective goods and services offered by the suppliers using the electronic environment in which it provides services. Therefore, the legality of the determinations in the relevant court decision can not be mentioned.
As a matter of fact, in the relevant Supreme Court decision, it has been determined that the responsibility of the intermediary service provider can not be handled according to the Articles 8 and the following under the title of “Defective Goods” of the Law No. 6502. And it is stated that the intermediary service provider is not obliged to check the content provided by natural and legal persons using the environment in which it provides services and to investigate whether there is an illegal activity or situation related to this content and the goods or services subject to the content. The relevant Supreme Court decision is very essential in terms of establishing a unity of jurisprudence and setting a precedent regarding the position of the intermediary service providers and the fact that they are not liable for the defective goods or services offered by the suppliers who are the counterparty to the agreement signed with the consumer.