ARTICLE
10 October 2024

The Guideline On Commercial Advertisement And Unfair Commercial Practices Conducted By Social Media Influencers

SO
Sakar Law Office

Contributor

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In today's digital world, social media has become an essential part of commerce. Social media influencers are among the key actors in these commercial activities.
Turkey Media, Telecoms, IT, Entertainment

In today's digital world, social media has become an essential part of commerce. Social media influencers are among the key actors in these commercial activities. These individuals, who influence consumers' purchasing decisions, reach large audiences with their posts on social media platforms and promote brands' products. However, such advertisements and promotions must be regulated within a specific legal framework. In this context, the Guideline on Commercial Advertisement and Unfair Commercial Practices Conducted by Social Media Influencers ("Guideline"), published by the Ministry of Commerce in 2021, establishes the legal regulations and ethical principles for commercial advertising conducted through social media.

Purpose and Scope of the Guideline

As explicitly stated in Article 1 of the Guideline, the purpose of this Guideline is to ensure that commercial advertisements conducted by social media influencers are transparent, clear, and do not mislead consumers, in line with Consumer Protection Law No. 6502 and the Regulation on Commercial Advertising and Unfair Trade Practices.

In general, this Guideline includes regulations on the responsibilities of advertisers, how social media influencers should disclose commercial advertisements in order not to mislead consumers, and the sanctions that may be imposed in case of violations of the Guideline.

How Shall Advertisements Be Conducted?

Article 5 of the Guideline regulates that commercial advertisements conducted on social media must be clear, understandable, and distinguishable. Social media influencers, when promoting a product or service, must clearly indicate that their posts have a commercial nature. Additionally, the influencer must clearly disclose any material or non-material benefits (such as gifts, discounts, fees) provided by the advertiser. The Guideline also sets forth how the content of advertisements should be, the hashtags that must be used, and specific regulations for different platforms, including video-sharing platforms, photo and message-sharing platforms, podcasts, and platforms where content is only visible for a short period.

According to Article 7, for advertisements and promotions made on video-sharing platforms (e.g., YouTube and Instagram TV), it must be explicitly stated in the video title or description who the advertiser is, whether any product was gifted, and/or whether there is a paid collaboration. These disclosures must be prominent and not hidden under the "read more" section of the platform.

Articles 8 and 10 regulate that in photo and message-sharing platforms (e.g., Instagram, Facebook, Twitter) and in platforms where content is only visible for a short time (e.g., Snapchat, Instagram), the advertisement must include the advertiser's name, brand, trade name, or similar identifiers, along with hashtags like #Ad, #Collaboration, or "@ [Advertiser] partnership."

Article 9 regulates that for advertisements conducted through podcasts, at least one of the following statements must be included at the beginning, middle, and end of the broadcast: "This podcast includes paid collaboration with [advertiser]," or "With the support of [advertiser]."

Finally, as in all forms of communication, the Guideline strictly prohibits covert advertising in social media, whether in audio, written, or visual form.

Obligations of Social Media Influencers

The Guideline brings a set of obligations on social media influencers to ensure that consumers are better informed and can make more transparent decisions. According to Article 6, influencers: (i) cannot express positive opinions about a product or service they have not yet experienced; (ii) cannot make health claims or other statements that are not scientifically substantiated; (iii) cannot create the impression that they have purchased a product that was gifted to them; (iv) cannot act as if they are just a consumer when promoting products; and (v) if they use effects or filters when promoting a product, they must clearly disclose the use of these filters.

Obligations of Advertisers

The obligation to comply with the Guideline is not solely set out for social media influencers; advertisers are also responsible for adhering to these provisions, as regulated in Article 11. Advertisers are required to inform influencers about the provisions of the Guideline, monitor influencers to ensure they comply with the relevant articles of the Guideline, and take necessary measures to prevent violations. If the advertiser can prove that they have made reasonable efforts to comply with the Guideline, they may avoid liability for the influencer's violations.

Sanctions

According to Article 12, social media influencers, advertisers, advertising agencies, and platform operators are all individually responsible for complying with the provisions of this Guideline. In cases where the Guideline, Consumer Protection Law No. 6502, or the Regulation on Commercial Advertising and Unfair Trade Practices is violated, sanctions, including fines and advertising bans, are imposed.

The Advertisement Board, operating under the Ministry of Commerce, imposes penalties such as suspending advertisements and imposing fines on companies that do not comply with the regulations. In 2024, the Board imposed approximately 149 million TL in administrative fines and suspension penalties after examining 927 cases of deceptive advertising and unfair trade practices. Given that commercial advertising and unfair trade practices on social media are increasingly being scrutinized by the Ministry of Commerce, it is essential to comply with the Guideline.

It is important to note that, even if a misleading advertisement or commercial practice is corrected or remedied, this does not exempt the individual from liability under the Guideline, the Consumer Protection Law, or the Regulation on Commercial Advertising and Unfair Trade Practices.

Conclusion

The Guideline is a significant regulation that centers on consumer protection and transparency in social media advertising. It aims to ensure transparency in the commercial activities of social media influencers, allowing consumers to make informed choices. Considering the rapidly changing trends and content creation dynamics in social media, it is crucial that these regulations are kept up to date and effectively implemented by influencers, advertisers, and advertising agencies alike.

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.

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