Ali Gül
Hukuk Bürosu

Advertising Ban on Social Network Providers

On July 31, 2020, various obligations were introduced for social network providers through amendments to Law No. 5651 on the Internet. One of these obligations is the requirement to designate and notify a representative, as introduced by the amendment to Law No. 5651. According to the law:

Social network providers that fail to fulfill the obligation to designate and notify a representative within 30 days will be subject to an administrative fine of 10 million Turkish Liras. Social network providers who do not fulfill their obligations within 30 days from the notification of the administrative fine in the amount of 10 million Turkish Liras will be subject to an administrative fine of 30 million Turkish Liras.

In November 2020, social network providers such as Facebook, Instagram, Twitter, Periscope, YouTube, and TikTok were fined 10 million Turkish Liras. With the expiration of the second 30-day period, social network providers were fined 30 million Turkish Liras. During this process, YouTube announced that it would comply with the obligations arising from Law No. 5651 by designating and notifying a representative.

Who Is Affected by the Advertising Ban?

The third phase of the sanctions imposed on social network providers, involving an administrative fine of 30 million Turkish Liras, began from the date of notification. Within 30 days from this date, the relevant provisions of Additional Article 4 of Law No. 5651 state the following:

The President shall prohibit individuals and legal entities residing in Turkey who are taxpayers from providing new advertisements to the relevant social network provider, and no new contracts can be established or money transfers related to this can be made.

The aforementioned 30-day legal period will expire in January 2021. If the Information and Communication Technologies Authority (BTK) exercises its authority as stipulated in the law, advertising on social network providers such as Facebook, Instagram, Twitter, and others may be prohibited. Therefore, establishing new contracts and making money transfers in this context may not be possible.

Can Sanctions Be Applied to Advertisers?

Thousands of companies and hundreds of SMEs in Turkey promote themselves by advertising, especially on Facebook and Instagram. If the advertising ban is enforced, commercial enterprises will suffer significant losses. The stance of social network providers who do not fulfill their obligations under Law No. 5651 will also be important here. It is unclear whether these companies will continue to receive ads if the ban is imposed.

Law No. 5651 states that individuals and legal entities will be prohibited from advertising on the relevant social network providers. However, there is no mention of any sanctions that can be applied to individuals who continue to advertise. In our opinion, administrative fines under Law No. 5651 cannot be applied to advertisers due to the principle of legality in penalties.

However, if the Authority wishes to impose fines on advertisers, it is evaluated that it can rely on the Commercial Advertising and Unfair Commercial Practices Regulation, especially in conjunction with its other articles, especially Article 26. According to this article:

“Advertisements for products or services with special regulations for advertising, such as medicines, human medicinal products, medical devices, healthcare services, foods, dietary supplements, cosmetics, and cleaning products, tobacco products, and alcoholic beverages, must also comply with other provisions related to advertising and promotion in the relevant legislation.”

For example, the Advertising Board has imposed fines on lawyers who violated advertising bans based on this article. In 2021, the fine to be imposed by the Advertising Board falls under the Consumer Protection Law and will be 114,326 TL. In some cases, the Advertising Board issues a single administrative fine for multiple advertisements, while in other cases, it imposes a separate fine for each violation.

Conclusion

  1. If advertising on social network providers is prohibited, thousands of corporate companies and hundreds of SMEs may find themselves violating this ban.
  2. There are no sanctions envisaged for advertisers regarding the advertising ban in Law No. 5651.
  3. The Authority may indirectly impose penalties on advertisers based on the relevant provisions of the Commercial Advertising and Unfair Commercial Practices Regulation.
  4. We consider it unlikely that the Authority will conduct an investigation and impose penalties for all parties violating the ban. However, as it has done before, the Authority may select a few companies and impose penalties on them to establish deterrence through them.