A New Approach To The Liability Of E-Commerce Platforms: The Constitutional Court's Annulment Decision Dated 12 February 2026

The liability of e-commerce platforms arising from consumer transactions has become one of the most widely debated issues in both Turkish and comparative law in recent years. E-trade platforms no longer function merely as digital marketplaces connecting sellers and consumers. Instead, they increasingly play an active role in a wide range of activities, from processing payments to managing consumer complaints and post-sale requests. This evolution has inevitably reignited the debate over the scope and limits of platform liability.

Against this backdrop, the Constitutional Court's (“Court”) decision dated 12 February 2026 (Case Number: 2024/187, Decision Number: 2026/42) marks a significant development. In its judgment, the Court annulled:

1. the phrase "...and Article 11..." set out in Article 48(6)(d) of the Consumer Protection Law No. 6502 ("CPL"), which excluded intermediary service providers from liability arising from consumers' statutory remedies in relation to defective goods; and
2. the application of Article 9(1) of the Electronic Commerce Law No. 6563 ("E-Commerce Law") in the context of consumer contracts.

The Court found both provisions incompatible with the Turkish Constitution and ordered that the annulment would take effect nine months after publication of the judgment in the Official Gazette. The decision was published on 02.06.2026 and will therefore enter into force on 02.03.2027.

This article first examines the liability regime applicable to intermediary service providers operating e-commerce platforms prior to the Court's ruling (“Section I”). It then analyses the Court's reasoning for the annulment (“Section II”) and, finally, assesses the approach to platform liability adopted by the Court in its decision (“Section III”).

I. THE LIABILITY REGIME APPLICABLE TO E-COMMERCE PLATFORMS PRIOR TO THE COURT'S ANNULMENT DECISION

Under Article 2(1)(ç) of the E-Commerce Law, a "service provider" is defined as any person or legal entity engaged in e-commerce activities, while Article 2(1)(d) defines an "intermediary service provider" as any person or legal entity that provides an electronic platform enabling others to carry out commercial or economic activities. E-commerce platforms fall within the latter category.

The position of intermediary service providers within the e-commerce ecosystem is significant in determining the scope of their liability arising from consumer transactions. The liability of intermediary service providers is primarily governed by the specific provisions set out in the E-Commerce Law and the CPL.

a. Scope of Liability Under the E-Commerce Law

In order to foster trust and legal certainty in the digital marketplace, the E-Commerce Law imposes certain obligations on intermediary service providers while at the same time limiting the extent of their liability for transactions conducted through their platforms. To this end, intermediary service providers are subject to various duties relating to information disclosure, record-keeping and the management of transaction processes, all of which are intended to ensure that e-commerce activities are conducted in a secure and transparent manner.¹

At the same time, Article 9(1) of the E-Commerce Law expressly provides that intermediary service providers shall not be held liable for goods or services offered by third parties. The provision reads as follows:

Accordingly, unless otherwise provided by law, liability for unlawful acts or omissions arising from goods or services supplied by third parties rests principally with the seller or service provider. Intermediary service providers, by contrast, are generally exempt from liability in respect of such unlawful conduct.

b. Scope of Liability Under the CPL

Under the CPL, intermediary service providers are characterised as entities that facilitate the conclusion of distance contracts. Consistent with the approach adopted under the E-Commerce Law, Article 48 of the CPL imposes a number of obligations on intermediary service providers aimed at ensuring that consumers can engage in e-commerce transactions in a secure and transparent manner. In this regard, intermediary service providers are required, among other things, to:

• fulfil certain obligations relating to pre-contractual information requirements;
• establish the technical infrastructure necessary for consumers to exercise their right of withdrawal;
• facilitate the transmission of consumer requests and notifications to sellers or service providers; and
• in certain circumstances, assume joint and several liability alongside the seller or service provider.

At the same time, the legislature drew an important boundary around the scope of such liability. Pursuant to Article 48(6)(d) of the CPL, intermediary service providers are not jointly and severally liable with sellers or service providers in relation to the consumer remedies available for defective goods under Article 11 or the remedies available for defective services under Article 15.

II. THE CONSTITUTIONAL COURT'S ANNULMENT DECISION OF 12 FEBRUARY 2026

The Court's decision dated 12 February 2026 (Case Number: 2024/187, Decision Number: 2026/42) concerns the liability of e-commerce platforms in connection with a defective product purchased through an e-commerce platform. The matter was referred to the Court by the 3rd Civil Chamber of the Ankara Regional Appellate Court, which considered certain provisions limiting the liability of intermediary service providers to be incompatible with the Turkish Constitution.

As part of its review, the Court examined two provisions. The first was the phrase "...and Article 11..." in Article 48(6)(d) of the CPL, which excludes the liability of intermediary service providers arising from consumers' remedies in relation to defective goods. The second was Article 9(1) of the E-Commerce Law, which provides that intermediary service providers are not liable for unlawful matters relating to content provided by service providers or to the goods or services forming the subject matter of such content.

The Court limited its review to the scope of the dispute before it. Accordingly, it did not examine Article 15 of the CPL, which regulates consumers' remedies in relation to defective services, and confined its assessment to Article 11, which concerns consumers' remedies in relation to defective goods. Likewise, the Court did not review Article 9(1) of the E-Commerce Law in relation to e-commerce activities generally; rather, it considered the provision solely in the context of consumer contracts.

The Court stated that treating intermediary service providers operating e-commerce platforms as passive intermediaries in all circumstances may not be compatible with the current structure of e-commerce. It further emphasised that certain platforms may have knowledge of the goods or services offered through their platforms, exercise a degree of control and influence over the transaction process and play an active role in the conduct of commercial activities. For this reason, the Court concluded that excluding intermediary service providers from liability in all circumstances and as a matter of principle does not provide sufficient safeguards for the protection of consumers.

According to the Court, the fact that intermediary service providers cannot be held liable under any circumstances in disputes arising from unlawful content or defective goods makes it significantly more difficult for consumers to be compensated for their losses, particularly where reaching the seller or service provider becomes difficult or practically impossible. The Court considered that such a framework is incompatible with the State's positive obligations to protect both property rights and consumer rights.

For these reasons, the Court concluded that the phrase "...and Article 11..." in Article 48(6)(d) of the Consumer Protection Law and Article 9(1) of the E-Commerce Law, insofar as it applies to consumer contracts, are incompatible with the provisions of the Constitution concerning the fundamental aims and duties of the State set out in Article 5, the right to property guaranteed under Article 35 and the protection of consumers provided for under Article 172.

III. THE APPROACH ADOPTED IN THE DECISION: THE IMPORTANCE OF THE PLATFORM'S ROLE IN THE ASSESSMENT OF LIABILITY

The Court's decision is significant because it calls for a reassessment of the traditional approach to the liability of intermediary service providers operating e-commerce platforms. The underlying premise of the Court's reasoning lies the recognition that intermediary service providers can no longer invariably be regarded as passive actors whose sole function is to connect sellers and consumers.

Indeed, modern e-commerce platforms perform functions that extend far beyond merely providing a digital marketplace in which parties can interact. Many platforms play an active role throughout the transaction process, from onboarding sellers and listing products to facilitating payments and managing consumer complaints. They also operate algorithms that determine product visibility, organise promotional campaigns and, in some cases, become directly involved in return and refund processes. Against this background, the Court took the view that the assessment of a platform's liability should not depend exclusively on its formal legal classification, but should also take into account the role it actually performs in the transaction at issue.

On the other hand, the Court's approach should not be understood as advocating unlimited liability for intermediary service providers in respect of all consumer claims. Rather than endorsing a model of automatic platform liability, the Court appears to favour a more nuanced assessment that seeks to balance the platform's involvement in the transaction process against the need to ensure effective consumer protection. The Court expressly noted that a similar approach can be observed in European Union law.

Indeed, under the safe harbour regime established by Directive 2000/31/EC, e-commerce platforms are, as a general rule, not liable for goods and services offered by third parties.² However, both the case law of the Court of Justice of the European Union³ and the Digital Services Act demonstrate that the protection afforded to intermediary service providers is not absolute and that ⁴the nature of the platform's activities and its role in the transaction process are also relevant factors in the assessment.

In this respect, the decision appears to be aligned with the approach adopted in European Union law, under which assessments of platform liability are based not only on the platform's legal status but also on its role and influence in the transaction process.

IV. CONCLUSION

The Court's decision has brought the debate on the liability of e-commerce platforms to a new stage. The fundamental approach reflected in the decision is that the liability of an intermediary service provider should be assessed not only on the basis of its legal status under the law, but also by taking into account its role in the transaction process, its influence over the activity in question and the means at its disposal.

In this respect, the judgment neither places e-commerce platforms automatically in the same position as sellers or service providers nor accepts that they should be categorically exempt from liability merely because they qualify as intermediary service providers. This approach suggests that, particularly in the case of platforms that play an active role at different stages of the transaction process, the functions they actually perform and the influence they exert over the process will become increasingly important in the assessment of liability.

However, the decision does not provide a definitive answer as to the circumstances in which intermediary service providers may be held liable or the precise scope of such liability. Accordingly, any legislative measures adopted before the annulment decision takes effect are likely to play a decisive role in shaping the future boundaries of platform liability.

Ultimately, the judgment shifts the focus of the debate. The central question is no longer whether e-commerce platforms can be held liable in principle, but rather according to which criteria their liability should be assessed. In the years ahead, what will matter is not how a platform chooses to describe itself, but the functions it actually performs within the e-commerce ecosystem.

Footnotes

1. Additional Clause 2 of the E-Commerce Law

2. Locating Online Platforms in the Right Place: Between the Digital Services Act and Liability Law, Cemre Polat ve Ş. Barış Özçelik, page 1

3. Locating Online Platforms in the Right Place: Between the Digital Services Act and Liability Law, Cemre Polat ve Ş. Barış Özçelik, page 2; Case C-324/09, L'Oréal v eBay, ECLI:EU: C:2011:474, para 116

4. Digital Services Act, Recital 18

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.