WEBSITE TERMS OF USE
1. Introduction
Website terms of use are the body of rules governing the legal relationship established between the natural or legal person providing services through a particular website (the “Service Provider”) and the person using the site or becoming a member of it (the “User” or “Member”). These rules apply from the moment the User begins to use the site; they are drawn up unilaterally by the Service Provider and enter into force on the date on which they are published on the website.
Since the terms of use agreement determines the rights and obligations as between the Service Provider and the User, it may qualify as “general terms and conditions” in the light of Art. 20 et seq. of the Turkish Code of Obligations No. 6098 (the “TCO”). Because of that character, the requirements as to form and content laid down in the TCO must be satisfied if the agreement is to be binding.
2. General Terms and Conditions and the Terms of Use Agreement
2.1. The Concept of a General Term or Condition
Under Art. 20 of the TCO, general terms and conditions are defined as “contractual provisions which the drafting party, when concluding a contract, has prepared in advance and alone with a view to using them in numerous similar contracts in the future, and has presented to the other party”. Under the same article, contracts prepared by persons and institutions carrying on the services they provide under a statute or under a permission granted by the competent authorities are likewise subject to the provisions on general terms and conditions.
The distinguishing feature of general terms and conditions is that the other party (the User) has no opportunity to negotiate them. The other party has the choice either of accepting the contract in its entirety or of rejecting it altogether. That circumstance is not, however, sufficient in itself for the terms and conditions of a contract to acquire the character of general terms and conditions; the requirements of transparency and disclosure in Art. 21 of the TCO and of compliance with the rule of good faith in Art. 25 must also be satisfied.
2.2. Requirements for Legal Validity
Under Art. 21 of the TCO, in order for general terms and conditions that are contrary to the interests of the other party to form part of the contract, the drafting party (the Service Provider) must give express information as to the existence of those terms, thereby affording the User the opportunity to learn their content, and the User must accept them. Otherwise, the general terms and conditions are deemed “not to have been written”.
Under Art. 23 of the TCO, where the terms of a contract are not clear and comprehensible, or are open to more than one meaning, they are construed against the drafting party and in favour of the other party (the User).
Art. 25 of the TCO, for its part, provides that no provision may be inserted which, contrary to the rules of good faith, operates to the detriment of the other party or aggravates that party’s position.
2.3. The Approach of the Court of Cassation to General Terms and Conditions
In the drafting and the application of general terms and conditions, the Court of Cassation frequently emphasises the importance of the “rule of good faith” (Art. 2 of the Turkish Civil Code) and of the “duty of express disclosure”. For example, in one decision of the 13th Civil Chamber of the Court of Cassation (E. 2014/25805, K. 2015/14632, T. 23.06.2015), it was held that, in contracts based on general terms and conditions, where the other party has not been sufficiently informed and the terms have not been negotiated, those provisions cannot be regarded as binding. Similarly, the Court of Cassation states that the burden of proving that the clauses of the contract were read or understood likewise rests, in principle, with the drafting party (the Service Provider).
3. The Importance of the Terms of Use Agreement
A terms of use agreement relating to a website performs a critical function in a number of respects:
a) Processing of personal data: under Art. 5 of the Personal Data Protection Act No. 6698 (the “KVKK”), personal data may not be processed without the express consent of the data subject. Within the framework of the terms of use agreement it becomes possible to obtain the User’s consent and to establish the legal basis for the processing activity.
b) Protection of intellectual property rights: in order to prevent the unauthorised copying of website content, its sharing on other platforms or other similar unlawful use, provisions on intellectual property rights should be included in the terms of use.
c) Limitation of liability: in accordance with the provisions on “agreements excluding liability” laid down in Art. 115 of the TCO, it is important to determine the circumstances in which the Service Provider does not assume liability, or the framework within which its liability may be limited.
d) Court with jurisdiction or arbitration clause: by setting out expressly in the terms of use which courts or arbitral bodies are to have jurisdiction over disputes that may arise out of the contract, the aim is to expedite proceedings and to ensure legal certainty. In practice, wording such as “the Ankara Courts and Enforcement Offices” or similar clauses is frequently included; in addition, an arbitration clause may be used to secure the resolution of disputes within a short period.
4. Types of Website Terms of Use
4.1. Browsewrap Agreements
In browsewrap agreements, the terms of use appearing on the website can generally be reached through a link at the foot of the page (the footer) or at the top (“Terms of Use”, “Kullanım Şartları” and the like). The User is deemed to have accepted those terms “tacitly” by continuing to use the site. Under this model, however:
• It may not be possible to inform the User about the terms of the agreement and to obtain an active statement from the User that he or she has read and accepted it.
• It cannot be established with certainty when, and by whom, the agreement was accepted.
For that reason, browsewrap agreements are models whose validity is disputed in practice. Since they are capable of creating unilateral terms in favour of the Service Provider, there is a high risk of their being deemed “not to have been written” under Art. 21 et seq. of the TCO. The Court of Cassation, too, has frequently held that, where general terms and conditions are not expressly notified to the User, provisions of that kind may not be regarded as valid.
4.2. Clickwrap Agreements
In clickwrap agreements, the User is expected to read the terms of use and to give active approval. For example, at the registration, installation, payment or form-completion stage, the User is required to tick a box stating “I have read and accept the Terms of Use” or to click a button. This model:
a) ensures that the User is expressly informed.
b) requires the User to approve the terms of the agreement affirmatively.
c) makes it possible to obtain fresh approval for amendments or updates made by the Service Provider to the terms and conditions of the agreement.
d) allows it to be established on what date, and by whom, the terms of use were accepted.
Clickwrap both affords the drafting party (the Service Provider) legal security and, by informing the User about the content of the agreement, minimises disputes concerning general terms and conditions. It is therefore the method most often preferred in practice and the one regarded as sounder in terms of legal certainty.
5. Matters That Should Be Agreed in the Contract
It is of great importance that a valid and enforceable terms of use agreement address the following matters:
a) Express identification of the parties: the Service Provider’s trade name, address, contact details and the like, together with the User’s identity and/or information relating to membership, must be stated clearly.
b) Provisions on the protection of personal data: within the framework of Art. 5 of the KVKK and the relevant legislation, the User must be informed on matters such as the purposes of processing, the retention period and the conditions for transfer.
c) Intellectual property rights: how the website content (text, images, graphic design, software and the like) is to be protected, and what the sanctions will be in the event of unauthorised use, must be regulated.
d) Membership conditions and the membership agreement: matters such as the User’s age of membership, capacity to conclude a contract, cancellation and renewal procedures and the conditions for suspending or closing an account must be determined.
e) Forum for the resolution of disputes and arbitration clause: the express inclusion of wording such as “the … Courts and Enforcement Offices shall have exclusive jurisdiction over disputes that may arise in connection with the terms of use”, together with provisions allowing recourse to arbitration, is important for the swift resolution of disputes.
f) Limitation of liability: in accordance with Art. 115 of the TCO, the circumstances in which the Service Provider is not liable, or the extent to which its liability may be limited, must be stated.
g) Amendments and updates: the amendments to be made to the terms of use, and the manner in which Users will be notified of those amendments, must be expressly regulated.
h) Termination and expiry of the agreement: the circumstances in which the agreement comes to an end, the periods of notice of termination and the consequences arising upon termination must be clarified.
i) Legal notices, privacy policy and data protection: in addition to the privacy policy, records of which data of Users are collected and how those data are kept must be presented to the User as an information notice.
j) Conditions and limits of use and enjoyment: the disclosures required under the Distance Contracts Regulation and the Consumer Protection Act No. 6502, and the addition to the site of texts such as the distance sales contract and the preliminary information form, are mandatory.
k) Detailed company information: under Art. 1524 of the Turkish Commercial Code No. 6102 (the “TCC”), capital companies subject to audit are obliged to establish a website within three months of the date of registration in the trade registry. That site must include the information specified in Art. 6 of the Regulation, such as the MERSİS number, the trade name, the registered office, the amount of paid-up capital and the full names of the chairman and members of the board of directors or of the managers.
CONCLUSION
A website terms of use agreement is of great importance both for the Service Provider and for the User. Because it is drawn up unilaterally, it must comply with the provisions on general terms and conditions in the TCO. Otherwise, the provisions contained in the agreement may be deemed “not to have been written” or may be rendered ineffective under the principle of construction against the drafting party (Art. 23 of the TCO).
The decisions of the Court of Cassation also show that, where the User has not been expressly informed and there is no proof that he or she read and approved the text of the agreement, it becomes difficult to rely on clauses in the nature of general terms and conditions. Accordingly, the terms of use should be accepted by means of an active approval method such as the clickwrap model, and the text of the agreement should be drafted in clear, comprehensible language and presented to the User.
In addition, fundamental headings such as the protection of personal data, infringement of intellectual property rights, limitation of liability and the determination of the court with jurisdiction or of an arbitration clause in disputes must without fail be incorporated into the text of the agreement. A lawful, transparent and comprehensible terms of use agreement both preserves the balance of interests between the parties and forestalls potential disputes.