APPLICABLE LAW TO E-COMMERCE BUSINESS MODELS1- Definition and Market Share of E-Commerce
E-Commerce is defined in Law 6563 on the Regulation of E-Commerce, Art.2 as “All kinds of online economic and commercial activities carried out electronically without physically contact”.
Rapidly developing technology and the global market that this technology opens to trade is constantly growing. With a market share of $ 1.3 trillion worldwide in 2014, e-commerce became $ 2.8 trillion in 2018; expectations are to reach 3.9 trillion dollars by 2021. Meanwhile, Turkey's e-commerce is one of the countries that grow very fast. In fact, the e-commerce market share, which was only 14 billion TL in 2013, increased to 42.2 billion TL in 2017 and 59.9 billion TL in 2018. E-Commerce continues to change the structure of the economy, especially due to its ease and cheapness, as well as gaining confidence.2- E-Commerce Business Models and Applicable Law
Although it is understood only as the sale of retail goods and services from business to consumer, e-commerce consists of many different business models with the participation of many different actors, and the provisions applicable to these models differ legally. Therefore, it is important to know these business models and the applicable law.
In E-Commerce law, we can talk about 5 basic and biggest business models. These are B2B (Business to Business), B2C (Business to Customer), B2C (Business to Government) and G2C (Government to Customer).
- B2B includes ordering, payment and invoicing from suppliers around the world using an open or closed network. Alibaba.com is a typical example of this model. Nationally, this model will be implemented by the Commercial Code, Code of Obligations, Law on Regulation of E-Commerce since both parties are traders and the activity is commercial business and most importantly, these platforms are commercial business oriented.
- B2C is the most common business model. It covers the services provided by businesses to consumers and the wholesale-retail goods sales activity. E-commerce sites such as Nesine.com, tatil.com, trendyol.com are the most common examples. TCC 19/2, “contracts which are commercial business for only one of the Parties, unless there is a contrary provision in the law, and the other one is considered as commercial business.” shall not be applied because there is a special provision Special provisions relating to consumer law will apply as it confers the enterprise and the consumer. Here again, Law on Regulation of E-Commerce, Turkish Code of Obligations and Personal Data Protection Law are applied, but the Law on Consumer Protection is the main law to be applied in this business model. Moreover, considering the advantages and rights that TKHK provides to the consumer, even in the consumer-seller position that comes together physically in commercial life; it is clear that TKHK will find more applications in e-commerce, where the consumer sees the product only as the seller wants to show it. In the international arena, the EU Electronic Trade Directive 2000/31, the UNCITRAL Model Electronic Commerce Law of 1996 and the GDPR will be applicable. The Consumer Rights Directive 2011/83 / EU and the UN Universal Declaration of Consumer Rights may also play a role.
- C2C is a business model that describes the transactions between consumers, which are defined as natural or legal persons acting for non-commercial or non-professional purposes in the Article 3/1-K titled “Definitions’ of the Law on Consumer Protection. Especially LetGo is the most typical. In this model, since both parties are consumers and there is no professional / commercial purpose, the Code of Obligations and ETDHK will be applied. As there is no continuity element, it is not correct to apply the provisions of the TCC to these sales transactions, as incidental sales are not covered by the TCC. The fact that the users have become a profession to sell on that platform does not change the business model. It is the platform that determines the model, which status persons can join the platform and perform transactions. Detection of malicious vendors does not belong to the platform as it is an intermediary service provider. These kind of providers are only obligated to detect if there is a request or complaint.
- B2G and G2C are the two business models with the lowest share among the 5 major business models. B2G can be given as an example of the publication of public tenders on the internet and the bidding of firms in electronic environment. This issue is very new in our country and operates under eihale.gov.tr within the Ministry of Trade. Of course, laws that are mandatory for the procurement of goods by the state, such as Public Procurement Law, dominate this model. However, Law on Regulation of E-Commerce, TCO and TCC also take part in this field. G2C, on the other hand, covers the sale of goods and services offered by the government to citizens online. In this respect, activities such as Social Security premiums and paying taxes on the internet can be evaluated within this scope. As it is a public service, it will be appropriate to apply the rules of Administrative Law.
Of course, e-commerce business models are not just B2C, C2C, B2B, G2C and B2G. Models such as G2B, C2G may also be used. However, it is not mentioned that these models do not have a significant market or even some assets in some countries.
E-Ticaret İş Modellerine Uygulanacak Hukuk Kuralları
Applicable Law to E-Commerce Business Models
Av. M. Burak KÜÇÜKİSLAMOĞLU