Influencer Marketing in Turkish Advertising Law

Introduction

The rapid increase in the use of social media today is affecting almost all sectors. The advertising industry is among the sectors that immediately come to mind when considering this change, as it formulates its strategies through social media. Advertising agencies, moving away quickly from traditional advertising methods, frequently turn to formulating their advertising strategies through social media influencers for the brands or sellers they serve. The relevance and rapid development of this technique called influencer marketing raise questions regarding the applicability of written legal rules. This research will focus on the legal nature of advertising activities carried out through social media platforms via social media influencers (in other words, “influencers”), the legal regulations it is subject to, and how it leads to violations in practice.

Briefly, Turkish Advertising Law

In order to assess the legal nature of the Influencer Marketing technique, it will be necessary to briefly discuss the regulations to which advertisements are subject in Turkish law. In Turkish law, there is no specific regulation for advertising activities carried out through social media. Therefore, advertising activities carried out using the influencer marketing technique will be subject to general regulations regarding advertising law. The primary regulation in Turkish law concerning advertisements is the Regulation on Commercial Advertising and Unfair Commercial Practices, prepared based on the Law on the Protection of Consumers (“CPL”). The regulations in this regulation are applicable to all types of commercial advertisements published in any medium, regardless of the sector they belong to (Article 2 of the Regulation). The fundamental purpose of the regulations in the advertising law legislation is to protect consumers against unfair commercial practices and to establish the basic principles that advertisers must adhere to, as well as the criteria for examinations to be conducted within these principles.

In the paragraphs to follow, the fundamental regulations concerning advertising law will be discussed, and then the Influencer Marketing technique will be evaluated within the framework of these regulations.

To ensure the compliance of commercial advertisements with the law, the Advertising Board (“Board”), which is affiliated with the Ministry of Trade, has been established in accordance with the Law on the Protection of Consumers (“CPL”). The Board is empowered with the authority to determine the fundamental principles that must be adhered to in commercial advertisements, make regulations regarding advertisements, examine and inspect advertisements, and, as a result, enforce sanctions.

Based on its examination results, the Board is responsible and authorized to stop or correct advertisements and notices that violate legal provisions, or impose fines using the same method. Depending on the nature of the legal violation, multiple sanctions can be applied to the advertisements and notices under investigation. This is entirely at the discretion of the Kurul. Additionally, the Kurul is also authorized to issue temporary suspension penalties for up to three months when deemed necessary.

In the examination of advertisements and the regulations related to advertising law, the concept of an “average consumer” is central. According to the Regulation, an average consumer is defined as a natural or legal person who acts for non-commercial or non-professional purposes and possesses a reasonable level of information at every stage of consumer transactions or practices directed towards consumers (Article 4/j of the Regulation). The fundamental principles adopted in the implementation of the Regulation are listed in Article 5: Advertisements cannot contain images and expressions that violate general ethical principles, disrupt public health and order, lead to acts of violence or illegal or condemnable behaviors. Additionally, advertisements are prohibited from denigrating, exploiting, prejudicing, or discriminating against consumers based on their fears, beliefs, political opinions, races, languages, or any other characteristics.

Influencer Marketing and its Place in Turkish Law

The accessibility and level of interaction on social media have led advertising agencies to shift their advertising strategies to this platform. Consumers are more exposed to advertisements on social media compared to other platforms, and brands/sellers can easily measure consumer reactions through social media and develop new marketing strategies by tracking consumer responses. Additionally, advertising activities carried out through social media stand out compared to other mediums due to features such as easy accessibility of advertisements, the ability to modify content, and the lower cost of advertising.

In addition to creating advertisements on their own profiles on social media, brands also utilize individuals known as influencers in their advertising activities. The term “influencer” translates to “etkileyen” in Turkish and, in internet slang, refers to individuals with a specific number of followers and an audience who are inspired by the content they share. While influencers have profiles on social media that vary in terms of content, they are often associated with concepts related to cosmetics, travel, fashion, and food and beverages. Before the emergence of influencer marketing, influencers used to incorporate brands into their content that aligned with their concept. However, this incorporation was often not deliberate, and as a result, influencers did not profit from these activities.

Influencers, who share recommendations, praises, and recommendations about the products or services they use with their follower base, have gradually started to include brands in their content and profit from advertising as social media has become a lucrative industry over time. Due to the trust that their followers have in them, influencers can have a significant impact on their purchasing activities, and brands can reach a narrower audience through influencers.

Contracts between advertisers and influencers specify how influencers will carry out their advertising activities. For example, according to the contract, influencers can become the face of a brand, include the brand in their content on a one-time basis, or feature the brand’s content on their profile. Additionally, there may be certain restrictions on influencers as per the contract, such as not promoting the products or services of other brands during the contract period or not featuring products from other brands in their content. The legal nature of the advertising activity will be determined based on the advertising activity specified in the contract.The basis for considering promotional activities carried out through influencers on social media as commercial advertisements lies in Article 61 of the Law on the Protection of Consumers (“CPL”), which contains the definition of a commercial advertisement: “Commercial advertisement is the marketing communication in any medium made in writing, visually, audibly, or by similar means by advertisers with the purpose of ensuring the sale or lease of a product or service, informing or persuading the target audience, in connection with trade, business, craft, or profession.” Therefore, promotional activities falling under the category of commercial advertisements will be subject to regulations related to commercial advertisements.

Influencers often conduct their advertising activities by trying products from brands, using services, and recommending them in their content. The principle of distinguishing advertisements is regulated in Article 6 of the Regulation, which states that regardless of its format and the medium in which it is published, an advertisement should be clearly identifiable as an advertisement. Therefore, it is legally mandatory for influencers to explicitly state that their content, in which they recommend products in exchange for compensation, is an advertisement while presenting these products to their follower base.

As an extension of the principle of distinguishing advertisements, Article 22 of the Regulation addresses the prohibition of covert advertising. Covert advertising, as defined in the Regulation, refers to the inclusion of names, brands, logos, or other distinctive shapes or expressions related to goods or services, trade names, or business names with the aim of advertising, and presenting them in a promotional manner in written, news, broadcasts, and programs without clearly stating that it is an advertisement.

According to the Regulation, covert advertising is prohibited on all communication platforms. When the principles of distinguishing advertisements and the prohibition of covert advertising are considered together, it is necessary for influencers to explicitly state that the content they share in exchange for compensation is part of their advertising activities, or the average consumer must be able to understand that the content is an advertisement. However, in practice, brands often collaborate with influencers to create content that is as persuasive and influential as possible. Therefore, the content is not explicitly labeled as advertising, and instead, advertising texts are prepared to ensure that it is not perceived as advertising. Consumers may find the products and services advertised by the influencers they follow and look up to more appealing, but they may not realize that the content is, in fact, advertising. This situation constitutes a violation of one of the most fundamental principles in advertising law, which is the requirement for advertisements to be clearly distinguished and the prohibition of covert advertising.

To the extent that advertising agencies aim to make it difficult for consumers to recognize the content as advertising, they often instruct influencers to share the content in the same format and style as their usual posts and prepare advertising texts accordingly. Additionally, in order to create the perception that the influencer genuinely uses and enjoys the product being recommended in the advertising content, brands sometimes send the product, along with an empty box of the same product, to the influencers. In this way, when influencers promote the product in their advertising content, they show the empty box, creating the impression that they have used the product before and liked it enough to purchase it again.

Another prohibited practice according to the Regulation is unfair commercial practices. Unfair commercial practices, which significantly distort or have the potential to distort the economic behavior of the average consumer concerning a product or service, can be seen in two forms: misleading and aggressive practices. The Regulation provides examples of unfair commercial practices in its Annex, which fall under Articles 28 to 31. Influencer marketing can also involve unfair commercial practices. For instance, in influencer advertising content, if the influencer falsely claims that a product is limited in stock and about to run out, falsely asserts that a product or service is on sale when it is more expensive than market conditions, or pretends to be a satisfied user when they have never used the product, these actions could be considered unfair commercial practices and would be illegal.

Another notable regulation in the Regulation is the rules regarding testimonial advertisements. According to these rules, advertisements cannot contain or refer to any testimonial or endorsement that does not rely on the experience, knowledge, or research results of the person, entity, or organization providing the testimonial and that is not true, valid, or otherwise applicable (Article 16 of the Regulation). Influencer marketing can be considered a form of testimonial advertising in some respects because influencers often claim to use and endorse the product or service they are advertising. In this case, the influencers serving as testimonial sources would violate testimonial advertising rules if they recommend products without actually using them or if their claims are not truthful. However, proving whether the testimonial statements in influencer advertising content are accurate can be challenging. Therefore, unless it can be proven otherwise, influencers who claim to love a product in their advertising content may not necessarily be in violation of testimonial advertising rules.

According to the regulations, advertisements cannot denigrate or disparage any person, institution, organization, commercial or professional activity, product, service, advertisement, or brand (Article 10 of the Regulation). If an advertisement is of a comparative nature, it must comply with the rules outlined in Article 8 of the Regulation. These rules include not being deceptive or misleading, not including elements such as the product name, brand, or logo of competitors, refraining from disparaging competitors, comparing products or services that meet the same need, and comparing a feature that benefits the consumer.In practice, it’s common for influencers to conduct advertising activities under the guise of recommendations and compare products from different brands that serve the same need. Advertising activities structured in this manner would be considered comparative advertising and would need to adhere to the rules mentioned above.

Penalties for Illegal Advertising

Türk reklam hukukunda Reklam Kurulu, Türkiye’de her mecrada yayınlanan reklamların idari denetimi konusunda yetkilidir. Hukuka aykırı reklamlara ilişkin olarak Kurul, re’sen veya şikayet üzerine inceleme başlatabilir. Tüketiciler, kamu kurum ve kuruluşları veya rakip firmalar ilgili reklamın hukuka aykırı olduğu gerekçesiyle Kurul’a başvuruda bulunabilir. The Board is authorized to enforce the following sanctions against advertisers, advertising agencies, and media organizations that act in violation of legal obligations:

Stopping the relevant advertisement,
Correcting the advertisement through the same method,
Imposing administrative fines,
Temporarily suspending the advertisement for up to three months as a precautionary measure when deemed necessary.

The Advertising Board can impose these penalties together or separately, depending on the nature of the violation. However, there is no consistent approach established by the Board in this matter. While the Board can penalize one advertiser who commits a violation of the same nature by only stopping the relevant advertisement, it can simultaneously apply administrative fines to another advertiser for the same transgression. The Board’s approach in this regard has faced criticism concerning predictability. Additionally, the Board applies administrative fines not only to advertisers but also to the media outlets that broadcast the advertisements. Consequently, concerning influencer marketing, both advertisers and influencers may be subject to administrative fines due to unlawful advertisements.

In accordance with Article 77 of the Consumer Protection Law and as of the year 2021, the administrative fine for advertisements conducted over the internet being in violation of the law is 114,326 Turkish Liras.

Advertising Board Decisions Regarding Influencer Marketing

Up to this point, there haven’t been any precedent court decisions specifically related to advertisements conducted through the influencer marketing technique. However, the Advertising Board (Reklam Kurulu) issued its first decision related to this matter in July 2020, which was published on their website.

In the Press Release of the Advertising Board Meeting dated July 14, 2020, decision number 2020/500 and subsequent decisions address influencer marketing. In the case under consideration, influencers advertised a dietary supplement product called “No Attack” and used health claims in their advertisement (using health claims for dietary supplements is prohibited under Turkish advertising law). Furthermore, the influencers did not clearly state that the content was an advertisement. The Advertising Board imposed an administrative fine of 104,781 Turkish Liras on the advertiser, Bilge İlaç Bitkisel Ürünler Koz. San. Ve Tic. A.Ş., in decision number 2020/500, and in decision number 2020/501 and subsequent decisions, the Advertising Board also imposed separate administrative fines of 104,781 Turkish Liras each on the influencers who promoted the product, namely Seda Sayan, Şeyma Subaşı, Seren Serengil, Seray Sever, Ebru Akel, and Seda Akgül. Additionally, the relevant advertisements were ordered to be stopped.

One of the aspects that the Advertising Board evaluated regarding influencer marketing in the mentioned decisions is the lack of a clear statement that the content is an advertisement. The Board considered these contents as covert advertisements and concluded that they violated relevant legal provisions. Additionally, unlike our assessment regarding testimonial advertising rules mentioned earlier, the Board concluded that the influencer marketing in question created the perception that the influencers had personally experienced the product but that this did not reflect the truth. Therefore, the Board found the content to be deceptive and misleading, and that it violated the rules related to testimonial advertising. In our opinion, since there is no evidence to conclude that influencers did not experience the products advertised, the Board’s assessment of testimonial advertising is inaccurate.

Conclusion

Influencers who create content on social media platforms generate income through their advertising activities. Although it differs from traditional advertising techniques, this method, called influencer marketing, is considered as commercial advertising and must be conducted in compliance with advertising regulations.
Since the aim is to make the promotion of the product or service convincing, advertisements conducted through influencers often violate the principles of distinguishing ads and the prohibition of covert advertising. To ensure that influencer marketing is in compliance with the law, influencers must explicitly state that the content is an advertisement. Even if the advertised product or service is cleverly integrated into the shared content as part of the advertising activity, an average consumer is expected to easily recognize that it is an advertisement.
In our opinion, although it may not be categorized as testimonial advertising, there are decisions by the Advertising Board that classify influencer marketing as testimonial advertising. Therefore, to avoid potential sanctions, influencers should refrain from claiming to use and recommend the product or service they are advertising if they do not actually use it.
Promoting products or services that are prohibited from advertising, such as pharmaceuticals, alcohol, tobacco products, or supplements using health claims, is illegal in advertisements created through influencers on social media platforms.
In Turkey, the Advertising Board is authorized to oversee advertisements, and it has the authority to impose sanctions such as suspension, correction through the same method, administrative fines, and temporary suspension for up to three months on advertisers, advertising agencies, and media organizations who act unlawfully. Depending on the nature of the specific violation, the Board can impose these sanctions together. As of 2021, the administrative fine for advertisements conducted online that violate the law is 114,326 Turkish Liras.
While applying regulations designed for traditional advertisements to advertisements on social media platforms may pose challenges in practice, ensuring the applicability of existing regulations and the effectiveness of sanctions will be necessary. Although there is only one significant decision by the Advertising Board regarding influencer marketing, we anticipate that in the coming days, the Board will issue more violation and sanction decisions as this sector continues to grow, and violations increase.