Today, with the development of technology and the parallel increase in the use of smart phones, social media has gained incredible popularity. Today, almost every individual uses a social media tool according to their interests and needs. In addition, due to the fact that social media reaches large audiences from almost every segment, many brand-owning companies have started to advertise their products through social media influencers and reach consumers in this way. There was a need to draw the legal framework of this practice, which has gained popularity but whose destination is uncertain, with new regulations.
Our Law Office followers know, we previously published an article on Social Media Law and we mentioned some of the social media crimes in that article, this time, the legal aspects of commercial advertisements and unfair commercial practices on social media and their effects on consumers, with new regulations every day. We tried to evaluate it together.
Before the recent developments, there were no special regulations regarding the advertising activities carried out on social media in the Turkish Law. In Turkish law, advertisements in all kinds of media, including social media, must be in accordance with the law, public order, morality, honest, correct and must not mislead or deceive the consumer. Advertisements made in the form of influencer marketing through social media can be broadly defined as witness advertising, that is, advertising that involves people using the product expressing their opinions about the quality and superior features of the advertised product.
In this way, the main legal problem that may come to mind in advertisements is that the situations in which the social media influencer who makes the advertisement is benefited by the brand owner company and that this activity is not clearly communicated to the consumer can be considered within the scope of the implicit advertising ban.
Covered advertisement prohibition, in accordance with the Law No. 6502 on the Protection of Consumers and the Regulation on Commercial Advertising and Unfair Commercial Practices, the name, brand, logo or other distinctive form or expression of the goods or services in articles, news, broadcasts and programs without expressly stating that they are advertisements. or the names of businesses are included for advertising purposes and presented in an introductory manner. Any advertisement that falls under this definition is considered a covert advertisement. In this way, it is forbidden to make audible, written and visual covert advertisements in all kinds of communication tools. In addition and in relation to this, Article 12 of the Commercial Advertising and Unfair Commercial Practices Regulations. In its article, “ Ads may not include or refer to any testimony or endorsement statement that is not true and is not based on the experience of the person being interviewed .” provision is included.
When the advertisements made through social media influencers within the scope of the implicit advertising prohibition with the said provision are evaluated, it will not be clearly understood that it is an advertisement, although it is created the impression that the social media influencer shares his experiences about the product voluntarily, without knowing that the social media influencers who advertise here are secretly benefited by the brand owner company. In this way, it can be accepted that covert advertising is made by the social media influencer and the brand owner. In summary, it should be clearly understood that promotions published in all kinds of media, including social media, are advertisements.
As a result of the fulfillment of all these principles mentioned above and the complaints about the activities of social media influencers in the advertising sector, the “Guide on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers” was published, which simply regulates the developments experienced by the TR Ministry of Commerce.
The basic principles regulated in the aforementioned guide regarding advertisements made through social media influencers are listed below:
- Advertisements must be clearly and comprehensibly worded and distinguishable.
- It is forbidden to make audible, written and visual covert advertisements.
- In posts where benefits such as financial gain from the advertiser and/or free or discounted goods or services are provided, the social media influencer must clearly state this with at least one of the statements specified in the Guide.
- Such statements, labels and explanations must be visible, distinguishable and clearly understandable as specified in the Guide.
Another issue regulated in the Guide is the following obligations of the social media influencer:
- It cannot share for commercial advertising purposes regarding a good or service that it has not yet experienced, in a way that will approve that good or service in the eyes of consumers or create the perception that it has experienced it.
- It cannot make claims about scientific research and test results related to a good or service that are objective, measurable, not based on numerical data and cannot be proved.
- It cannot direct or promote the goods or services offered by doctors, dentists, veterinarians, pharmacists and health institutions.
- It cannot create the impression that it has purchased a good or service gifted to it by the advertiser.
- It cannot create the impression that it is only a consumer while it provides financial gain and/or benefits such as free or discounted goods or services from any advertiser regarding the commercial advertisement of a good or service.
- In the commercial advertisement of any commodity, it clearly states that the image is filtered if it uses effects or filtering applications.
- May not systematically collectively create and/or use false or non-existent identities to communicate about a good and/or service via social media.
Although the phrases brought for the implementation of all these principles and obligations have changed in terms of style from media to media, its meaning is the same as the general principles in all media, and it has been made mandatory to include the following phrases in the advertisement, which is suitable for the nature of the advertisement.
7 titled “Ads made on video sharing channels” in the guide. The article is exactly as follows;
In the advertisements made on video sharing channels such as YouTube and Instagram TV and in live broadcast shares, continuously in the video or in the title of the video or in the description section or at the beginning of the section where the relevant advertisement will go, consumers are given in writing and verbally without having to click on a field such as “read more”. At least one of the following explanations is included:
- “ This video[reklam veren] contains advertisements.”
- “This video is[reklam veren] It includes paid cooperation with
- “[Reklam veren] With the support of.”
- “These products[reklam verenden] I bought it as a gift.”
- “For sending me the products[reklam verene] thanks.”
In short, social media influencers have to use one of the above phrases so that they will not mislead consumers with their advertisements and will not cause a violation of the implicit advertising ban.
In the light of all this information, as it can be seen, every innovation, a new practice, which is beneficial to the society, brings with it the need for a new legal regulation. Although legal regulations have been introduced in this area, it cannot be said that it is sufficient. We are of the opinion that in the future, legal regulations can be changed, developed and become much more detailed according to the behavior of social media influencers, the unjust treatment that may occur in consumers, the complaints and suggestions that may arise in this regard.
Ayse Bilge Sahin
Lawyer / K&P LEGAL LAW OFFICE