In the advertising sector, liability for misleading advertisements remain a long running debate among advertisers, media agencies, and media channels especially during the era of the new Turkish Consumer Protection Act Nr. 6502 ("New TCPA") effective as of 28th May of this year. Article 77 of the New TCPA rules that advertisers, media agencies, and media channels not complying with the provisions of the New TCPA stipulating the commercial ads will be sanctioned by the Turkish Council of Advertisement. In other words, so that the content of an advertisement will not be interpreted as "misleading" or "deceptive" underlies a heavy duty.
Digital media, as an emerging popular channel, are also running the risk to be accountable for the misleading or deceptive advertisements they created on behalf of their customers. Except few exceptions, although the revenues digital media channels generate are incomparable with their customers being the advertisers by whom digital media channels are assigned for doing the "creative work" they are blamed for the content they produce, process, and provide. Regardless of the depth of their pockets, it is for sure that role players in the advertisement sector are not comfortable having the sword of Damocles' swinging over their heads waiting for them to incur penalties for the work they have created which turns out to be a "misleading/ deceptive advertisement."
With the help of developing technology, there is no doubt that definition of media channels expanded as a result of the growing diversity therein, which enabled crowds to meet on the same platform. Although the cost of publishing advertisements in new generation media channels is lower than TV's, newspapers or radios, all of them are treated by the same rules. Unlike the superseded Turkish Consumer Protection Act Nr. 4077 ("Old TCPA") the New TCPA seems to have left the duty of defining media channels to the draft regulation on the Commercial Advertisements and Unfair Commercial Implementations. Until such draft regulation will become effective, one has to look into the current regulation on the same subject, which was published during the era of the Old TCPA in the Turkish Official Gazette on 14th of June 2003 Nr. 25138 ("Commercial Advertisement Regulation") and defined a media channel as "the place, platform where the person, group or community meet who are in a position to transmit and receive the advertisement and promotion message (communication channels such as television, all kinds of printed media, internet, radio, cinema along advertisement carrying materials such as outdoor, printed works)". There is no uncertainty that all sorts of media channels developed within recent decades including digital platforms are covered by this definition. Such definition was strengthened by the same regulation while defining media organizations as "any individual or legal entity being the owner, operator or lessee of the communication channel or all kinds of intermediaries transmitting a commercial ad or publication to the target audience." This definition shows the rule maker acknowledges any kind of transmitter carrying the commercial ad to a specific audience, as a media channel.
As mentioned above, advertisers, advertisement agencies and media channels are obliged to comply with the provisions of the New TCPA stipulating under its Section 6 "Commercial Advertisements and Unfair Commercial Implementations". As in the Old TCPA, the New TCPA defined the commercial ad as "...in relation to any commerce, work, trade, or profession; publications bearing the qualification of a marketing communication realized by advertisers in any kind of media through printed, visual, audial or similar channels in order to ensure the promotion or lease of a good or service, to inform or to persuade persons constituting the target audience..."
As per the New TCPA, commercial advertisements has to be in compliance with the principles, general moral, public order, personal rights and at the same time have to be true (fair) and honest (bona fide). Deceptive advertisements or advertisements abusing inexperience and lack of information, threatening security of life and property, encouraging acts of force and committing a crime, disordering public health, abusing patients, children and disabled people are prohibited.
The New TCPA also banned implicit advertisement and accepted "placing and introducing names, trademarks, logos, and other distinctive designs and statements in relation to goods or services along with commercial titles and trade names in statements, news, publications and programs without identifying the advertisement but with the purpose of making advertisement thereof" as implicit advertisement. The New TCPA further rules that implicit advertisement by virtue of any kind of communication channel in an audio, written, and visual form is prohibited.
As in the Old TCPA, the New TCPA also ruled that a Turkish Council of Advertisement is constituted to determine the principles to be complied with in commercial advertisements and establishing rules for the protection of consumers against unfair commercial implementations, to conduct surveys and audits based on such scope, if necessary, depending on the survey and audit to cease or to revise with the same method or to impose an administrative fine or to decide to cautionary cease the advertisement for up to three (3) months. Decisions of such council are implemented by the Turkish Ministry of Customs and Commerce.
The Turkish Council of Advertisement is entitled to take above mentioned punitive measures collectively or separately. As mentioned in the preamble hereof, as per Article 77 of the New TCPA, the Turkish Council of Advertisement is entitled to take such measures against the advertiser, media agency or media channel.
It should be also essentially noted that the Turkish Council of Advertisement has the authority to monitor advertisements at its own discretion or taking complaints into consideration. In this sense, any kind of individual or legal entity would be interpreted as a "media channel" could face such punitive measures.
The Turkish Council of Advertisement is entitled to impose pecuniary fines on misleading or deceptive advertisements differentiated depending on the media channel's variety. If the breach has occurred through (i) local TV channel a monetary fine of TL 10.000, (ii) nationwide broadcasting TV channel a monetary fine of TL 200.000.-, (iii) periodical publications half of the afore mentioned fines; (iv) local radio channel a monetary fine of TL 5.000.-, (v) nationwide broadcasting radio channel a monetary fine of TL 50.000.-, (vi) Internet a monetary fine of TL 50.000.-, (vii) SMS a monetary fine of TL 25.000.-, (viii) other channels a monetary fine of TL 5.000.- will be imposed. If the breach is repeated within one year, the afore mentioned fines can be multiplied to ten times of these amounts.
In scrutiny of the Internet Law and Media Law, one can determine the responsibilities of digital media channels are severe. Digital media channels are acting most of the time as content providers being individuals or legal entities producing, processing or providing any type of information or data transmitted to end users via Internet. But do they bear editorial liability? If you are a media service provider placing advertisement in TV or radio, the answer to this question seems to be relatively accurate according to the Turkish Act on the Incorporation of Radio and Television Channels and Broadcasting Services Nr. 6112, which defines editorial liability as having the authority on the content and choosing of programs along with having authority on preparation and monitoring of broadcasting flow schedule in radio and television broadcasting services and provision of discretionary publication services within a catalogue. Those who enable access to Internet or provides place for advertisement thereon are either not liable for the content or have limited liability in only ceasing the publication of any content upon the decision of Turkish Council of Advertisement. In this sense, digital media channels are totally left alone with the content they place on the Internet without any defined editorial liability whatsoever. Although they are acting upon the "instruction" of their customers, customers are unwilling to "check" whether the content produced by their agencies is not misleading or deceptive for any reason. Being in a position to know their goods or services better than anyone, isn't it just unfair to blame the digital agency for a content produced based on the data given actually by the customer, being the advertiser? Luckily, amongst the most recent fifty decisions of the Turkish Council of Advertisement, only a few cases resulted in sanctioning the media channel for producing misleading or deceptive content. On the other hand, it is common knowledge many companies put pressure on their digital agencies to have their agreement to reimbursing the customer in the event a punitive measure would be taken against the commercial ad. Those who get stuck during the negotiation of the agreements including such agreement will definitely need the advice of a good lawyer!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
