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Legal Liability for Selling Medicines Online in Turkish Law(*)

Türk Hukuku’na Göre İnternetten İlâç Satışından Doğan
Sorumluluk

Mehmet AKÇAAL

Selling medicines online or in any other electronic form is not allowed in Turkish law. Because the sale of medicines (or medicinal product) online is a distance sale contract in the eye of law, such contract will be null and void. For that reason, victims are not entitled to any claim under the distance sales contract concluded with their supplier in Turkish law. However, the victims and other persons in the distribution chain can bring an action based on tort against the supplier. This article analyses the legal principles of civil liability for the sale of medicine online in the first place. Secondly, it explains whether it is possible to protect consumers who have bought a medicinal product online. Thirdly, it describes the protection of owners of pharmaceutical trademarks because of the online sale of their products without their permission. Finally, it sheds light on the criminal liability of the online sale of medicines in Turkish criminal law.

Law of Health, Legal Liability, Medicine, Sales of Medicine Online, Absolute Nullity.

Türk Hukuku’nda ilâçların internet veya başkaca herhangi bir elektronik ortamda satışının yapılması yasaktır. Bu sebeple, internetten ilâç satışına ilişkin sözleşmeler kesin hükümsüzlük (butlan) müeyyidesine tâbidir. Dolayısıyla, bu şekilde ilâç satın alan kimselerin satıcıya karşı sözleşmeye dayanan herhangi bir talepte bulunmaları mümkün değildir. Ne var ki, böyle bir durumda, satıcıya karşı haksız fiil esasına göre dava açılabilir. Bu çalışma kapsamında ilk olarak, internetten ilâç satışının yol açtığı hukukî sorumluluk incelenmektedir. İkinci olarak da, internetten satın alınan ilâçlar bakımından tüketicilerin korunmasının mümkün olup olmadığı tartışılmaktadır. Üçüncü olarak, internetten izinsiz ilâç satışından dolayı marka sahibinin korunması hakkında açıklamalara yer verilmektedir. Nihayet, internetten ilâç satışının cezaî sorumluluk boyutunun açıklığa kavuşturulmasına yönelik olarak da değerlendirmede bulunulmaktadır.

Sağlık Hukuku, Hukukî Sorumluluk, İlâç, İnternetten İlâç Satışı, Kesin Hükümsüzlük.

Introduction

Medicine is an indispensable product for human life. Medicine law is a new discipline in Turkish law. Although the issue of criminal and legal liability for the online sale of medicines is a current topic in the Turkish legal system, it has not been thoroughly analyzed so far. There are only a few judgments regarding the criminal liability, but these are related to the sale of unlicensed medicines. The issue of criminal liability for the online sale of medicines has not been discussed in the literature1 .

I. Civil Liability

Selling medicine online is prohibited according to Act about the Pharmacists and Pharmacies2 no 6197 in Turkish law. The Article 24, 1 st paragraph, 3 rd and 4 th sentence of the Act state that: “the medicines cannot be sold online or in any other electronic form. Websites cannot be set up in the name of pharmacists and pharmacies”. So selling medicine online is unlawful in the Turkish legal system.

Since distance online sale contracts regarding medicinal products are null and void from the moment that they were made, the victims and other persons in the distribution chain are not entitled to any claim under the distance sales contracts concluded with their supplier in Turkish law. A contract that is null and void does not give any right to the parties. However, the party who has performed the contract may demand restitution based on the provisions regarding unjust enrichment (C. O. Arts. 77-82) from the other party3 . Victim can also demand compensation because of the null and void online sales contract for medicine on the basis of liability for “culpa in contrahendo” if the other party has fault4 .

Moreover, the victim and other persons in the distribution chain can bring an action against their supplier on the basis tort due to the fact that their rights of personality are infringed. When the medicines are sold on internet, victim can demand damages according to provisions related to the tort liability (C. O. Arts. 49-76). The conditions which are necessary to hold supplier responsible for tort are unlawful action, fault, damage and causality. First of all, contradiction to law is necessary to compensate the material damages. Otherwise, the act will be legal according to the law. Material damage must occur because of contradiction to law. If there is no material damage, action for damages cannot be brought. An unlawful act is necessary to bring an action for material damages. Omissions may also be adequate for an unlawful action. The defendant must have fault; whether it is intent to an act or negligence does not matter. If there is a tort, the injured party (victim) has to prove that the other party (tortfeasor) has negligence at least5 .

Ineffectiveness of a medicinal product constitutes a basis for such a liability if damage occurs, ineffectiveness of a medicinal product is identical to the effectiveness of a medicinal product6 . Thus, the pharmacist or the seller should be responsible for the ineffectiveness of a medicinal product. The Court of Appeal states that if the medicine does not benefit patients, the producer has to compensate the damage of patient. Art. 18 of Act related to the Pharmacy and Medical Medicament7 no 1262 regulates administrative fines for ineffectiveness of a medicinal product.

Anyone who suffers damage because of the online sale of medicines is within the scope of protection of the Turkish Civil Code8 no 4721 and the Code of Obligations9 no 6098. Because rights of personality involve life, bodily integrity and health as well10 . Act against rights of personality sets an example for tort. As a rule, anyone who suffers damage because of the online sale of medicine is protected under Articles 24-25 of the Turkish Civil Code and Article 49 of the Code of Obligations. Victims can demand material and moral damages when the medicine harms them. Material damages which can be demanded from other party are actual material damages and loss of profits.

Moreover, when the bodily harm is serious or the victim is death, persons who have close ties with the victim can demand their own moral damages, as well11 . Persons who are deprived of support of the deceased person can demand their own material damages the tortfeasor in accordance with the Art. 53/3 of the Code of Obligations no 6098. They can also demand funeral expenses, medical treatment expenses and losses related to the workforce (Art. 53/1-2). All these provisions aim to protect the personality of victim.