NEW GUIDELINE ON COMMERCIAL ADVERTISEMENT AND UNFAIR COMMERCIAL PRACTICES MADE BY SOCIAL MEDIA INFLUENCERS HAS ENTERED INTO FORCE
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”), which was prepared based on the Consumer Protection Law numbered 6502 and the Regulation on Commercial Advertisement and Unfair Commercial Practices (the “Regulation”), has been accepted with the principle decision of the Turkish Advertisement Board dated 4 May 2021 and numbered 2021/2, brought into force on 5 May 2021 and published on the Ministry of Trade’s official website. With the subject Guideline, it was aimed to guide advertisers, advertisement agencies, media organizations, as well as all persons, institutions and organizations on commercial advertisement and commercial practices made by social media influencers which have already reached to a massive growth.
According to the Guideline, social media is defined as real persons or legal persons that enable users to create, view or contents such as text, images and sound on the internet for social interaction purposes under the Law on Regulation of Internet Broadcasts and Prevention of Crimes committed through the Broadcasts numbered 5651 and dated 4/5/2007.
“Social media influencer” is defined as an individual who engages in marketing communication via his/her social media account in order to sell or rent a good or service belonging to him or the advertiser to the target audience in order to inform or persuade them.
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 provision in the Article 6 of the Regulation, entitled “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 provision also reflects the Article 22 of the Regulation, entitled “the prohibition of making hidden advertising” which states that it is prohibited to make oral, written and visual hidden advertising in any type of communication tool.
As per Article 5/2 of the Guideline, in case the social media influencers obtain financial benefit, and/or free or discounted product or service from the advertiser, they must clearly disclose this fact, with at least one of the expressions provided under the Guideline, depending on the type of the platform.
That being said, the influencer is being imposed the obligation to use at least one of the explanations listed pursuant to the category of the platform that the advertisement is conveyed, which are provided in different articles of the Guideline.
The Guideline classifies the advertisements made through social media channels into four categories depending on the type of content and platform as below, determining for each channel the tags and expressions to include in an advertisement post:
- the advertisements made on video sharing platforms,
- the advertisements made on the photo and message sharing platforms,
- the advertisements made on the podcast platforms, and
- the advertisements made on the platforms where the content can only be seen in a limited time,
As per each above listed platforms, the Guideline provides different advertising rules.
The Guideline has also specified how to insert the said expressions and tags to the posts in terms of color and location in order to make them easily noticeable by the consumers.
The obligations of the social media influencers have been determined in the Guideline and accordingly they cannot:
- publish a post aiming a commercial advertisement, for a product that they have not experienced but creating a contrary perception among the consumers.
- Make health declaration regarding a product or a service.
- Make any claims on scientific research and test results, regarding a product or service, which are not based on objective, calculable, statistical and provable.
- Refer to products or services offered by doctors, dentists, veterinarians, pharmacists, and health institutions, or promote these products or services.
- Create an impression that they have purchased a product or service although it was given to them by the advertiser as a gift.
- Create an impression that they have only been a consumer during the period if they have obtained financial benefit, and/or free or discounted product or service.
- Systematically establish and/or use fake or non-existing audience collectively, in order to communicate about a product and/or service through the social media.
Social media influencers are required to indicate the use of effects or filters during the commercial advertisement of a product.
Regarding the advertisers’ responsibility, they are required to inform the social media influencers about the provisions of the Guideline and request them to comply with the relevant legislation and to fulfill their obligations. They should also make efforts in order to make sure that the obligations are fulfilled by social media influencers and take precautions against violations. The advertisers cannot abstain from their obligations on the grounds that social media influencers are responsible for their own actions.
Finally, the advertisers, advertisement agencies, and social media influencers as media organizations, are each individually responsible for acting in compliance of this Guideline.
Our Law Firm remains at your disposal for any further clarifications or assistance you may need about the subject matter.