The title, which is different from all the common words used, can be a bit surprising. However, the reason why such a title has been chosen today is that consumers have an incredible problem with the companies and institutions where they buy a good or service. In this article, we will explain the pressures placed on consumers, how they are still being disturbed even after purchasing a product/service, and how this situation is in breach of both private life and Personal Data Protection legislation.
WHAT IS CONSUMER MAFIA?
Recently, SMS is sent to consumers from some law firms or companies regarding consumer debts whose legal process is continuing or not served, or consumers are constantly called and disturbed. It is reported the SMS sent state that the consumer has a certain amount of debt and if this is not paid, legal means will be resorted and the consumer will be taken to the court. In fact, there is a consumer mafia situation here, because if the consumer delays the installment payment for the service or goods he bought ever so slightly, he is then exposed to such bullying and pressure.
Today, with the increase in and facilitation of the communication system, there are sales made using subscriptions such as telephone, electricity and internet. The packages purchased for television and the intense campaigns that tire the consumer and the pressures towards membership transactions are actually the kind of behavior that would be done by the mafia. Especially in debit-credit relations, when consumers object to the invoice or service, it is said that the companies transfer the objection to their attorneys' offices for the collection of their receivables, before finalizing the objection. However, the consumer should be able to exercise the rights granted to him by law.
Another example is the consumer's forced subscription to a television channel or an internet campaign. It is the most common problem in the consumer mafia that consumers are called by phone and forced into channel and package memberships by being confused through various discounts and campaigns. As we all know, it starts with a phone call. The phone is answered, the consumer is called from the place where he/she has already purchased a service/goods, and then the other party speaks gently and tries to sell a service where the consumer can benefit from a lot of discounts and advantages. In fact, the consumer does not need it at the moment. However, the proposed discounts and advantages confuse the consumer. And before he knows it, he becomes a consumer of a very expensive channel that he has paid or will pay for but cannot watch.
IS THERE A LEGISLATION THAT PROTECTS CONSUMERS?
The Constitution protects the consumer in the first place. The consumer is a person who must be protected for various reasons; since the consumer is economically weak against the producer, manufacturer, importer and seller, which constitute the opposite side of the contract. Furthermore, he is a person who does not know and cannot know how the goods or services he buys are produced, which raw materials and what technology is used and the risks the product/service poses for his health or peace, and therefore he should be informed and enlightened for these reasons. However, such information is not provided to the consumer today, especially where and for what reasons the personal data received from the consumer will be used is not clearly explained to the consumer. For these reasons, the consumer is weak and in need of protection. In this respect, since the consumer rights are essentially the human rights, the consumer rights that are related to protection of consumer are protected in the context of fundamental human rights in the Constitution.
The second legislation is the Consumer Protection Law No. 6502. In particular, Article 61 of the law clearly states that advertising should not be made in a way that disturbs the consumer. “No commercial advertising may be made that may deceive the consumer or exploit his/her lack of experience or knowledge, endanger the safety of life or property, encourage violent acts or offenses, disrupt public health, and that abuse patients, the elderly, children or the disabled.” Looking at the article, the pressure put on the consumer and its transformation into a mafia relationship is in a way against the law. When a consumer experiences such a situation, s/he may go to the Consumer Arbitration Board and the Consumer courts based on this law alone.
Another legislation is the Law No. 6698 on the Protection of Personal Data (KVKK), which includes the protection of personal information provided by consumers during membership or subscription. Considering that personal data may have been obtained unlawfully, the option of criminal complaint should also be taken into consideration within the scope of Article 136 titled "Giving or Obtaining Data Unlawfully", of the Turkish Penal Code no.5237. Numerous applications have been filed with the Personal Data Protection Authority regarding the receipt of advertisement notifications to e-mail addresses or SMS or calls to mobile phones without the express consent of the consumers, which is in violation of the provisions of the Law. Therefore, necessary precautions were taken in 2018 and this decision of the Board in 2018 was published in the official gazette.
With this decision; contacting consumers through e-mails and mobile phones in the form of messages or calls for advertising purposes is in fact subject to the consent of the consumer within the scope of enlightening and information. First of all, in this matter, the consumer, in an enlightening and informing way, (in the form of a separate signature or tick boxes in the information form) is given the options for receiving advertising or contact (e-mail, phone calls, messages, etc.) which way they accept, and options of I accept and I do not accept, and then his approval is received and he is contacted in a way he accepted. However, the important point here is this: Enlightening and Approval must be done in two different processes, because they are different processes, different actions. In the enlightening, the consumer is informed about the product bought or the transaction, or if it is an advertisement or subscription, then information on them are provided. Afterwards, the approval for the subscription or membership, or even for the use of the contact information elsewhere or the sending of SMS / mail shall be obtained.
HOW CAN WE PROTECT THE CONSUMER FROM BEING DISTURBED BY CONSUMER MAFIA?
Let's say the consumer buys a service and, as he gives his information, is disturbed by constantly being called on the phone or receiving ads via sms / e-mail. In cases where the consumer has not given explicit consent, he / she has the right to demand the deletion of his/her personal data and closure for the advertisement searches from the relevant data responsible (whichever institution is authorized at that time). If the data officer does not fulfill the demand of the consumer, then the consumer may file a complaint with the Personal Data Protection Board, which started accepting applications in 2018 with the decision entered into force with the official gazette. It may be possible to impose a fine of an amount prescribed by law on data officers for acts that violate this decision.
Finally, we can talk about the Turkish Penal Code depending on the size of the disturbance. Since the consumer right is a human right in constitutional terms, it is a right that should be protected by penal laws.
Consumers are disturbed by phone calls rather than via sms and e-mail. By constantly calling, they pester the consumer with the advertisements that are constantly sent and try to force to subscribe. Actually, disturbing with phone is an offense according to the Turkish Penal CodeIn this context, the article 123 of the TPC states exactly this: In case of persistent phone call, noise or other unlawful behavior for the sole purpose of disturbing the peace and quiet of someone, the perpetrator shall be sentenced to imprisonment from three months to one year upon the complaint of the victim. Disturbing through the phone has now become a crime, even when done to a consumer. Another important issue is that the crime of disturbing by telephone is a crime subject to complaint. Therefore, if the consumer is constantly being disturbed by phone for an advertisement or subscription, he/she should go to the nearest authority as soon as possible and report his/her complaint. Otherwise, no investigation will be initiated on the crime.
In addition, the consumer can apply for complaints through the E-devlet or apply to CIMER if the company which is constantly disturbing is a state-affiliated one. S/he can also solve the problem in some way by receiving help from Alo 175 consumer line. However, the most effective way is to go to the nearest authority to make a complaint and follow the case through an expert lawyer; because this issue is a new one in our law and cases about this generally not taken into consideration by judges. With the guidance of an expert lawyer in this field, the incident that is “basic" in the eyes of judges can result in a positive outcome and have a positive impact on other courts and consumers.
In conclusion, the consumer mafia is an active movement in limiting the freedoms of consumers regarding the service, membership, subscription, communication and communication they purchase. Legal measures can be taken with legal authorities, prosecutors and lawyers who are experts in their fields in case of disturbing consumers by phone.
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