February 7, 2022

Authors: Berfu Yalçın, Serdarhan Güler

New developments are occuring with the gradual prevalence of e-commerce platforms and becoming an inseparable part of life with the pandemic.In proportion to capaciousness of these developments and the number and sequence of the advertisements made by companies the interest of consumers in e-commerce is growing rapidly.  In this context, the use of e-commerce sites is expanding, not only for household goods, garments, cosmetics; but also for kitchen shopping. This intense interest of consumers has led to the formation of tech giants such as Amazon and E-bay internationally and important technology companies such as Trendyol, Çiçeksepeti, Hepsiburada, Getir in our country. Likewise, it is possible to see from the report[1] published by the Ministry of Trade that the ratio of e-commerce to general trade was 17.6% in the first six months of 2021.

In this context, features of the economy are changing considerably, and we, as lawyers and legislators, have the obligation to develop rules and research the subject in accordance with the new shopping order.In the Official Journal dated January 25, 2022, an appeal in favor of the law decision made by  the 3rd Civil Chamber of the Court of Cassation, dated November 15, 2021 and numbered 2021/4000 E., 2021/11403 K., regarding the liability of intermediary service providers that enable electronic commerce due to defective goods was published. We also believe that it would be useful to examine this issue in the context of comparative law, and we hope that the information note titled "The Appearance of the Liability of Intermediary Service Providers Enabling Electronic Commerce Due to Defective Goods Under Different Legal Systems" will be useful to those concerned.First of all, it will be seen when looking at the decision of the 3rd Civil Chamber of the Court of Cassation numbered 2021/4000E. that the defendant (the Consumer) applied to the consumer arbitration committee with the demand for refund of the fee arising from the delivery of defective goods against ÇiçekSepeti (the Claimant) and the demand was accepted, but ÇiçekSepeti demanded the annulment of the transaction, arguing that it had no hostility with the defendant because it was not a supplier. The Local Court dismissed the case on the grounds that the claimant was responsible for the defective goods, that the recourse relationship with the supplier company was an internal relationship, and that the consumer was justified in relying on the ÇiçekSepeti brand. Pursuant to Law No. 6502, the Ministry of Justice demanded the appeal in favor of the law on the grounds that the seller, the producer and the importer are jointly liable for defective goods and holding the service provider, who is not one of them, responsible would be contrary to the procedure and the law. By the Court of Cassation; it has been stated that the Claimant Company, which enables e-commerce on the Internet network, is in the position of intermediary service provider and according to the preliminary information form of the distance sales contract between the parties, the seller party is stated as "Duman Pastry Shop", by Article 9 of the Law No. 6563 on the Regulation of Electronic Commerce and Article 6 of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce, it has been stated that the lawsuit should be accepted since the Claimant is not obliged to investigate the content provided and the judgment has been appealed in favor of the law."

When the judgment of the Court of Cassation above and legal regulations are investigated, it is possible to say the intermediary service providers are not liable for the defective goods delivered in e-commerce under Turkish law. However when the actions of service providers that organize such large advertising campaigns, make commitments about the reliability of the system, advertise in this direction, and provide incentives for the purchase of the products offered on their platform are examined, it is seen that these advertisements and trust play a major role in the purchases made by consumers. Considering their financial power, it is concluded that by some people believe that it would be fairer that the intermediary service providers to be held responsible. Although the reaction to new cases and situations is slow in countries with a Civil law legal system such as Turkey, in countries with an Anglo-Saxon legal system such as the United States of America, disputes are analyzed "case by case", which increases the speed with which the law keeps pace with new developments.  Furthermore, the European Union's most fundamental regulation regulating liability, the "’The Product Liability Directive (85/374/EEC)", was inspired by the decisions of judges in the United States, which were enforced for many years and became established case law. In this scope, we are going to examine first the judgments given regarding this matter in the USA.

In light of the above information, in the case of ‘’Oberdorf v. Amazon[1]’’ decided by the United States  Court of Appeals, briefly; a dog collar purchased by the consumer from a third-party seller is broken because of the sudden movement of the dog, and a part of the collar caused a serious, major and permanent damage by striking the left eye of the consumer, afterwards the consumer sued Amazon.