By its decision dated 12.02.2026 and numbered E.2024/187, K.2026/42, the Constitutional Court (the “Court”) annulled two important statutory provisions limiting the liability of intermediary service providers towards consumers in the field of e-commerce, on the grounds that they were unconstitutional. The underlying dispute arose from a consumer’s claim for non-pecuniary damages allegedly suffered due to a defective product purchased through an e-commerce platform.

The decision was published in the Official Gazette dated 02.06.2026 and numbered 33268. Taking into account the legal vacuum that could arise if the annulment decisions became effective immediately, the Court postponed their effective date. Accordingly, the annulment provisions will enter into force nine months after publication, on 02.03.2027.

The decision is significant as it may lead to a reassessment of the existing approach to the legal position of e-commerce marketplaces. Today, many platforms play an active role in payment processes, campaign management, seller onboarding, customer relations and, in certain cases, logistics. Consumers often complete transactions not only by relying on the identity of the seller, but also on the trust created by the platform.

1. Existing Legal Framework and Scope of the Annulment

Under Turkish law, two statutes are particularly relevant for consumer transactions concluded online. The first is Law No. 6502 on the Protection of Consumers (the “Consumer Protection Law”). Article 48 of the Consumer Protection Law regulates distance contracts, namely contracts concluded without the simultaneous physical presence of the parties. Under this article, intermediary service providers are required to establish a system enabling consumers to submit their requests and notifications, and may be held jointly and severally liable with sellers or providers in certain cases.

However, Article 48/6-d of the Consumer Protection Law excluded the liability of intermediary service providers for the exercise of consumers’ statutory rights relating to defective goods, even where the intermediary service provider collected the price on behalf of the seller or provider. These statutory rights generally include returning the product, requesting a price reduction, free repair, or replacement with a non-defective equivalent.

The second relevant statute is Law No. 6563 on the Regulation of Electronic Commerce (the “E-Commerce Law”). Article 9/1 of the E-Commerce Law provided that, unless otherwise stipulated in other laws, an intermediary service provider would not be liable for unlawful matters relating to the content provided by the service provider or the goods or services subject to such content.

The Court annulled the phrase “…and Article 11…” in Article 48/6-d of the Consumer Protection Law. Article 9/1 of the E-Commerce Law was annulled not in respect of all electronic commerce relationships, but only in respect of consumer contracts.

2. The Main Issue Examined by the Court

The central issue in the decision is not whether e-commerce platforms should be liable as sellers in all circumstances. Rather, the issue is whether consumers may be prevented in all circumstances from bringing direct claims against intermediary service providers, without taking into account the provider’s concrete role in the relevant transaction.

According to the Court, the annulled provisions did not distinguish between cases where the intermediary service provider acted merely as a technical and passive intermediary and cases where it played an active role in the sales process. This could weaken effective consumer protection, particularly where the seller cannot be reached, has ceased its activities, or is unable to compensate the consumer’s loss.

3. The Court’s Assessment

The Court stated that the price paid by a consumer constitutes an economic asset and must be protected within the scope of the constitutional right to property. Therefore, the State’s obligation is not limited to recognising theoretical rights for consumers. The State must also establish effective legal mechanisms capable of protecting consumers’ proprietary interests and enabling them to obtain redress for their losses.

The decision also attaches particular importance to Article 172 of the Constitution. Under this article, the State is required to take measures to protect and inform consumers. According to the Court, in light of the structure of digital commerce, this obligation requires a balanced liability system that enables consumers to exercise their rights effectively.

The Court further emphasised the distinction between active and passive intermediary service providers. Some platforms may merely provide technical communication between buyers and sellers. Others, however, may have knowledge of the goods or services subject to the transaction, exercise control over them, determine the qualifications of sellers or service providers, and play an effective role in assessing the quality of the goods or services offered.

According to the Court, comparative law generally recognises the so-called “safe harbour” approach mainly for intermediaries that provide services in a technical, automatic and passive manner. Where an intermediary service provider plays an active role in the economic relationship, applying the same broad exemption from liability may leave consumers unprotected.

For these reasons, the Court concluded that the annulled rules disturbed the fair balance between consumers and intermediary service providers to the detriment of consumers. In the Court’s view, preventing consumers from bringing direct claims against intermediary service providers in all circumstances imposed an excessive burden on consumers and was incompatible with the State’s positive obligations regarding the right to property and consumer protection.

4. The Approach in the Dissenting Opinion

The dissenting opinion adopted a different approach. It argued that the existing legislation does not leave consumers entirely unprotected. Intermediary service providers are already liable in various matters, including pre-contractual information, record-keeping, delivery or performance, the right of withdrawal, promotional campaigns conducted without the seller’s consent, and practices contrary to intermediary service agreements.

According to the dissent, the primary liability for defective goods should remain with the seller, producer and importer. Holding intermediary service providers broadly liable under defective goods rules may increase the financial risks borne by platforms. These risks may ultimately be passed on to sellers and consumers through higher prices, and may even cause certain platforms to withdraw from the market, thereby weakening competition.

5. Potential Implications of the Decision

The decision does not mean that e-commerce platforms will automatically be liable for every defective product or unlawful content. However, it shows that the defence of “being merely an intermediary” will not provide absolute protection in all consumer contract cases.

Going forward, the intermediary service provider’s concrete role in the transaction will become more important. Factors such as who manages the payment process, how the seller is onboarded, how the product is presented on the platform, how consumer complaints are handled, and whether the intermediary service provider has knowledge of or control over the relevant goods or services may become important in liability assessments.

Before the annulment provisions enter into force, the legislature may need to consider a new liability model that strikes a balance between consumer protection and the proper functioning of the e-commerce market. It will be important for such a model to take into account the distinction between active and passive intermediary service providers.

For intermediary service providers, the decision may require a reassessment of seller onboarding and verification procedures, product safety controls, consumer complaint and return mechanisms, seller agreements, security mechanisms and recourse provisions. For sellers, stricter document checks, additional contractual obligations and more detailed audit processes may come to the forefront.

For consumers, the most important implication of the decision is the possibility that the range of parties against whom they may bring claims could expand, particularly where the seller cannot be reached or is unable to compensate the loss.

6. Conclusion

The Court’s decision constitutes an important turning point in the liability of e-commerce marketplaces towards consumers. The decision demonstrates that digital platforms cannot always be treated merely as passive and technical intermediaries, and that a more balanced liability regime is needed to protect consumers, particularly where platforms play an active role in the transaction.

For this reason, the decision is an important development not only for consumer law, but also for the business models, platform agreements and compliance processes of e-commerce companies.