As we previously informed you in our Newsletter dated 27 May 2021, the basic provisions on the social media influencers were for the first time regulated in the Guideline on Commercial Advertisement and Unfair Commercial Practices made by Social Media Influencers (in Turkish, “Sosyal Medya Etkileyicileri Tarafından Yapılan Ticari Reklam Ve Haksız Ticari Uygulamalar Hakkında Kılavuz”, hereinafter referred to as the “Guideline”) dated 4 May 2021 which was prepared based on Consumer Protection Law numbered 6502 and the Regulation on Commercial Advertisement and Unfair Commercial Practices (the “Regulation”).

Now in this issue of our Newsletter, we would like to provide information on the related provisions in the European Union (“EU”) regulations with a comparison on Turkish law.

“Directive 2005/29/EC Of The European Parliament And Of The Council On Unfair Business-To-Consumer Commercial Practices In The Internal Market” (the, “UCPD”/ the “Directive”) constitutes the overarching piece of EU legislation regulating unfair commercial practices in business-to-consumer transactions which means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers. The Directive applies to all commercial practices that occur before, during and after a business-to-consumer transaction has taken place.

Besides, in the “Guidance on The Interpretation and Application of Directive 2005/29/EC of The European Parliament and Of the Council Concerning Unfair Business-To-Consumer Commercial Practices”, it was also explicitly declared that the Directive has a broad scope of application as it covers the totality of business-to-consumer transactions, whether offline or online. It applies to online intermediaries, including social media, online marketplaces and app stores, search engines, comparison tools and various other traders operating in the digital sector.

Social media platforms such as Facebook, Twitter, YouTube, Instagram and TikTok enable users to create profiles and communicate with each other, including sharing information and content. Social media platforms increasingly feature commercial practices that may be problematic such as:

Influencer marketing involves the promotion of specific brands or products through influencers using the positive impact that influencers are likely to have on consumer perceptions. An influencer is generally described as a natural person or virtual entity who has a greater than average reach in a relevant platform. For the purposes of the Directive, an influencer would qualify as a ‘trader’ or, alternatively, as person ‘acting in the name of or on behalf of a trader’. The obligations to be clear about the commercial communication apply to traders regardless of whether they are the suppliers of the product.

The failure to clearly declare the commercial element in an influencer’s content or practice could lead a misleading practice. According to the Directive, all commercial communications must be clearly indicated as such, unless already apparent from the context. Furthermore, the Directive also prohibits practices which do not make it clear that a trader has paid for the promotion of a product in editorial content.

Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) was accepted as one of the misleading commercial practices under the point of 11 of Annex I of the UCPD. The concept of ‘editorial content’ should be interpreted broadly, covering in some cases also content generated by the influencer or posted by them on social media platforms.

Besides, falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer, is another kind of misleading commercial practices under the point of 22 of Annex I of the UCPD.

In the light of the above provisions, the disclosure of the commercial element must be clear and appropriate, taking into account the medium in which the marketing takes place, including the context, placement, timing, duration, language, target audience and other aspects. The disclosure must be sufficiently salient to adequately inform the average or vulnerable consumer that receives the content. The prohibitions against hidden advertising in Article 7(2)* could be invoked both against social media platforms and third-party traders using social media platforms.

*“Article 7: Misleading omissions
2)It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.”

Turkey’s Approach Regarding Influencers

According to the Article 5/1 of the Guideline where the general principles are stipulated, the advertisements made through social media influencers must be clear, understandable and distinguishable. This article indeed reflects the provisions of the Regulation comprising provisions regarding “distinguishability of the advertisements” which clearly states it shall be understood that the post is an advertisement.

As another principle referred in the same article of the Guideline, i.e., as per Article 5/1, hidden advertising (in Turkish, “örtülü reklam”) in the form of oral, written or visual are prohibited, as in other platforms. This rule also reflects the provisions of the Regulation comprising the article of “the prohibition of making hidden advertising” which stipulates that it is prohibited to make oral, written and visual hidden advertising in any type of communication tool.

Finally, in view of the growing importance of influencer marketing, the impact it can have on consumer behavior and purchasing decisions domestic regulation became a necessity. Hence, this Guideline fills a significant gap in the influencers marketing and the necessary actions for a full compliance should be taken accordingly.

Our Law Firm remains at your disposal for any further clarifications or assistance you may need about the subject matter.