The Constitutional Court’s E-Commerce Decision: The Liability Regime of Intermediary Service Providers in Consumer Contracts
Introduction
The widespread use of e-commerce platforms has made the scope of intermediary service providers’ legal liability one of the most actively debated topics in contemporary consumer law. In particular, the extent to which intermediary service providers may be held liable for damages arising from defective goods or services purchased through online platforms has gained increasing significance under both Turkish law and comparative legal systems.
Under Turkish law, the obligations of intermediary service providers are governed, in addition to secondary legislation, primarily by the Law No. 6502 on the Protection of Consumers (“Consumer Protection Law”) and the Law No. 6563 on the Regulation of Electronic Commerce (“E-Commerce Law”). In this context, subparagraph (d) of Article 48 of the Consumer Protection Law limited the liability of intermediary service providers arising from distance contracts by excluding consumers’ optional remedies in respect of defective goods and defective services from the scope of joint and several liability. Similarly, Article 9(1) of the E-Commerce Law stipulated that intermediary service providers would not be liable for the content made available by service providers or for any unlawfulness relating to the goods or services that are the subject of such content.
In its decision dated 12 February 2026 (Case No. E.2024/187, Decision No. K.2026/42) (“Annulment Decision”), the Constitutional Court (“CC”) examined these provisions in light of Articles 5, 35 and 172 of the Constitution and concluded that they failed to provide an adequate level of protection for consumers’ property rights. The CC therefore annulled the relevant provisions on the grounds that they were incompatible with both the constitutional protection of the right to property and the state’s positive obligations to protect consumers.
Provisions Annulled by the Decision
Article 48(6)(d) of the Consumer Protection Law: Limitation of the Liability of Intermediary Service Providers
The constitutional challenge arose during the appellate review of a lawsuit seeking compensation for moral damages allegedly suffered because of a defective product purchased through an e-commerce platform. The 3rd Civil Chamber of the Ankara Regional Court of Appeal concluded that the statutory provisions applicable to the dispute were unconstitutional and referred the matter to the CC by filing a constitutional objection.
Article 48(6) of the Consumer Protection Law sets out in detail the liability of intermediary service providers in relation to distance contracts. Under this provision, intermediary service providers may, in certain circumstances, be held jointly and severally liable together with the seller or service provider in respect of pre-contractual information obligations, the retention of transaction records, obligations relating to the right of withdrawal, delivery and performance processes, and certain obligations arising from intermediary service agreements. However, subparagraph (d) of the same paragraph excludes from this joint and several liability the consumer’s optional remedies relating to defective goods and defective services under Articles 11 and 15 of the Consumer Protection Law, even where the intermediary service provider has collected the purchase price on behalf of the seller or service provider. Since the dispute before the referring court concerned only a defective product, the CC confined its review to Article 11 of the Consumer Protection Law and held that it lacked jurisdiction to examine Article 15, which governs consumers’ optional remedies for defective services.
Pursuant to Article 11 of the Consumer Protection Law, where goods purchased through an e-commerce platform are defective, the consumer cannot assert the statutory remedies arising from the defect against the intermediary service provider and may pursue such remedies only against the seller or service provider.
Article 9(1) of the E-Commerce Law: General Exemption from Liability in Favour of Intermediary Service Providers
The second provision examined by the CC was Article 9(1) of the E-Commerce Law. Pursuant to this provision, unless otherwise provided by other legislation, an intermediary service provider is not liable for the content made available by the service provider or for any unlawfulness relating to the goods or services that are the subject of such content.
This provision establishes a general exemption from liability in favor of intermediary service providers in respect of unlawful acts arising out of legal relationships formed between buyers and sellers or service providers during electronic commerce. The remainder of the provision limits the intermediary service provider’s obligation to the prompt removal of unlawful content once it becomes aware of such content.
Although Article 9 of the E-Commerce Law constitutes a general provision governing all legal relationships established through electronic commerce, rather than consumer contracts alone, the CC confined its review to consumer contracts in light of the nature of the dispute before it. Accordingly, the Court assessed the liability of intermediary service providers not from the perspective of electronic commerce law as a whole, but specifically in relation to the compensation of consumers for losses arising from defective goods.
The Liability Regime of Intermediary Service Providers in Comparative Law
The legal liability of e-commerce platforms has long been the subject of debate across many legal systems. At the heart of this debate lies the question of whether online platforms should be regarded merely as technical intermediaries or as economic actors playing an active role in the e-commerce process, and, consequently, how the scope of their legal liability should be determined.
In comparative law, this approach has been shaped based on the safe harbour doctrine (Annulment Decision, para. 43)[1]. Under this doctrine, platforms that merely transmit content generated by third parties in a technical, automatic and passive manner are, generally, not held liable for the unlawfulness of such content[2]. By contrast, where a platform assumes an active role in processes such as the presentation, ranking, pricing or quality control of products, it is widely accepted across legal systems that the platform may no longer benefit from safe harbour protection[3].
Although the Turkish E-Commerce Law was drafted based on European Union legislation, the distinction between passive and active platforms, which is firmly established under EU law, was not transposed into Turkish legislation with the same degree of clarity. Indeed, both Directive 2000/31/EC on Electronic Commerce, referred to in the general rationale of the E-Commerce Law, and the currently applicable Regulation (EU) 2022/2065 (“Digital Services Act (DSA)”) recognize that the liability exemption applies only to activities that are technical, automatic and passive in nature.
Accordingly, the regime adopted under EU law does not confer absolute immunity upon intermediary service providers. Instead, it establishes a differentiated liability regime based on the platform’s actual role in the electronic commerce process. In the Annulment Decision, the CC likewise observed that the Turkish legislative framework departs from this approach and shaped its constitutional assessment based on that distinction.
Reasoning of the CC
The Transformation of Electronic Commerce and the Evolving Role of Intermediary Service Providers
In its assessment, the CC highlighted the structural transformation that electronic commerce has undergone in recent years. According to the Court, developments in information and communication technologies have shifted commercial activities into the digital environment and have made e-commerce platforms one of the principal actors in modern economic life. As a result, a significant proportion of consumer transactions are now conducted through e-commerce platforms, which have evolved beyond merely providing a technical means of communication and are increasingly capable of playing an active role at various stages of the commercial process.
The CC specifically emphasized that the role of intermediary service providers in the electronic commerce process is not the same in every case (Annulment Decision, para. 41). According to the Court, while some platforms operate merely as passive intermediaries facilitating communication between buyers and sellers, others may play a decisive role in processes ranging from the admission of sellers to the platform to product ranking, pricing and quality control. Accordingly, the Court considered that adopting an absolute exemption from liability applicable to all intermediary service providers, regardless of their actual role, is incompatible with the contemporary functioning of electronic commerce.
This assessment constitutes the cornerstone of the CC’s reasoning. The CC recognized that, in an economic environment where the actual role of e-commerce platforms has fundamentally evolved, the applicable liability regime must likewise be designed to reflect that transformation.
The State’s Positive Obligations in Relation to the Right to Property
The CC conducted its constitutional review within the framework of the right to property guaranteed under Article 35 of the Constitution. The Court reiterated that the right to property extends not only to movable and immovable property but also to claims having economic value. Accordingly, any diminution in a consumer’s assets resulting from defective goods or services falls within the scope of the constitutional protection afforded to property rights (Annulment Decision, para. 32).
In its judgment, the CC further recalled that the protection of the right to property is not limited to requiring the state to refrain from interfering with that right. Read together with Article 5 of the Constitution, the right to property also imposes certain positive obligations on the state (Annulment Decision, para. 34). In this context, the state is required to establish an adequate legal and institutional framework capable of ensuring the effective protection of property rights, including in relationships governed by private law.
According to the Court, these positive obligations extend beyond the adoption of measures aimed at preventing interference with property rights and require the establishment of effective legal mechanisms capable of ensuring compensation for damage once it has occurred. Consequently, the legislature is under a constitutional obligation to strike a fair balance between the competing interests involved in complex, multi-party legal relationships such as those arising in the context of electronic commerce.
The Principle of Consumer Protection and the Balance of Interests
The CC also based its assessment on the principle of consumer protection enshrined in Article 172 of the Constitution. According to the Court, the state is under a constitutional obligation to adopt measures to protect consumers, and this obligation assumes even greater importance in markets such as electronic commerce, where consumers are often unable to establish a direct relationship with the seller (Annulment Decision, para. 39).
The challenged provisions, however, exclude intermediary service providers, as a rule, from liability for claims arising from defective goods and services, irrespective of the actual role they perform in the electronic commerce process. According to the CC, this approach subjects both platforms that merely provide technical intermediation and those that play an active role in the sales process to the same legal regime. It eliminates the possibility for consumers to pursue claims against platforms that exercise a certain degree of control or oversight over sellers. As a result, where the seller or service provider cannot be reached, consumers may in practice be left without an effective remedy.
For these reasons, the CC concluded that the challenged provisions upset the fair balance between the interests of intermediary service providers and those of consumers, to the detriment of consumers. According to the Court, exempting platforms from liability in all circumstances imposes a disproportionate burden on consumers and is incompatible with the state’s positive obligations concerning both the protection of property rights and the protection of consumers.
Entry into Force of the Annulment Decision
Pursuant to Article 153 of the Constitution, the CC ruled that the annulment would enter into force nine months after the publication of the decision in the Official Gazette. During this period, the legislature is expected to enact new legislation governing the liability regime of intermediary service providers.
Dissenting Opinion
In the dissenting opinion, it was argued that the challenged provisions are compatible with the Constitution. The dissent reasoned that the existing legislative framework does not grant intermediary service providers absolute immunity. On the contrary, it provides for their joint and several liability with the seller or service provider in relation to several obligations, including pre-contractual information requirements, the retention of transaction records, delivery and performance processes, and obligations relating to the right of withdrawal. Against this background, the dissent maintained that excluding consumers’ statutory remedies for defective goods and defective services from this joint liability regime does not undermine the constitutional protection afforded to consumers.
The dissent further observed that existing judicial practice[4] demonstrates that intermediary service providers are not entirely exempt from liability. In particular, where a platform plays an active role in the electronic commerce process or fails to comply with its statutory obligations, liability may already be imposed under the existing legal framework. Accordingly, the dissent concluded that there is no legal gap in the protection of consumers.
The dissent also relied on the potential economic consequences of the annulment. It reasoned that holding intermediary service providers liable for defective goods and services would increase the legal and financial risks borne by online platforms, and that these additional costs could be passed on to sellers, service providers and, ultimately, consumers. Accordingly, it was argued that, in exercising constitutional review, due regard should also be had to the state’s obligation under Article 167 of the Constitution to ensure the sound and orderly functioning of markets.
Conclusion
The CC’s Annulment Decision constitutes a landmark precedent defining the constitutional limits of the liability regime applicable to intermediary service providers under Turkish e-commerce law. The Court recognized that intermediary service providers do not occupy a static or uniform position within the electronic commerce ecosystem and that the degree of their involvement in the sales process varies significantly. On this basis, the CC concluded that an absolute exemption from liability, which fails to account for these differences, is incompatible with the constitutional guarantees relating to the right to property and the principle of consumer protection. This approach is also consistent with the passive–active platform distinction adopted in comparative law and places the CC's reasoning within the broader context of international legal developments.
At the same time, the judgment should not be interpreted as requiring intermediary service providers to be held liable in all circumstances and without limitation. By postponing the entry into force of the annulment for nine months, the CC has given the legislature the opportunity to design a new liability regime that strikes a fair balance between the competing interests at stake. In this context, it is expected that the legislature will adopt a proportionate and differentiated liability framework that takes into account the platform’s actual role in the electronic commerce process, its ability to exercise oversight and control over sellers, and the need to ensure that consumers have access to effective legal remedies.
- See L’Oréal and Others v. eBay International AG and Others (C-324/09), EU:C:2011:474, paras. 113, 116 and 123; Coöperatieve Vereniging SNB-REACT U.A. v. Deepak Mehta (C-521/17), EU:C:2018:639, para. 52.
- Directive 2000/31/EC on Electronic Commerce, Recital 42; Digital Services Act, Articles 5 and 8 and Recital 18.
- Akkanat-Öztürk, Elif Beyza /Akın, Eylül Erva: “Çevrimiçi Platformlar İçin Dijital Hizmetler Yasası’nın Hukuki Çerçevesi”, İdare Hukuku ve İlimleri Dergisi, 2024, pg. 115 et seq.
- In its judgment dated 14 December 2018 (E.2017/5834, K.2018/12148), the 13th Civil Chamber of the Court of Cassation held that the failure to provide complete information regarding the service provider on the platform could render the intermediary service defective and, accordingly, give rise to the intermediary service provider's liability. Furthermore, in its judgment dated 29 September 2022 (E.2022/3467, K.2022/6446), the 11th Civil Chamber of the Court of Cassation considered the fact that the intermediary service provider had collected payment from the consumer to be a decisive factor and confirmed that, where this condition is satisfied, the platform may be held liable in its capacity as an electronic intermediary service provider, upholding the first-instance court's conclusion in this respect.
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