Definition, Elements And Legal Framework Of Covert Advertising In Light Of Advertising Board Decisions

Introduction

Advertising is an indispensable element of modern economy and marketing practices and marketing. It serves crucial functions such as promoting products and services, enhancing brand visibility, and informing consumers. However, the need for advertisements to be conducted in a transparent and honest manner is vital in terms of both consumer rights and ensuring a fair competitive environment. At this point, the concept of "covert advertising" which is embedded in various content types such as news, programs, and articles without clearly being labeled as advertising, emerges.¹ As this practice can manipulate consumer perception and may lead to unfair competition, it is prohibited under Turkish law.² Covert advertisements are monitored by the Advertising Board ("the Board") in Turkey. This article explores the legal regulations, oversight mechanisms, and practical case examples regarding covert advertising.

The Concept and Definition of Covert Advertising

According to the Law No. 6502 on the Protection of Consumers ("LPC") and the Regulation on Commercial Advertising and Unfair Commercial Practices ("Regulation"), commercial advertising is briefly defined as marketing communication made in any medium for commercial purposes such as sales and leasing. Commercial advertisements consist of three essential elements: a promotional activity, a commercial purpose, and the clear identification of the advertiser.³

Covert advertising, on the other hand, is defined under the LPC and the Regulation as "the inclusion of names, brands, logos, or other distinctive signs or expressions related to goods or services, or trade names or business names, in writings, news, broadcasts, and programs without clearly stating that it is an advertisement, for the purpose of advertising, and their presentation in a promotional manner." In covert advertising, the consumer is exposed to a commercial message while assuming the content is non-commercial, thus catching the consumer off-guard.⁴

Elements of Covert Advertising

The fundamental criteria to determine whether a piece of content constitutes covert advertising are as follows:⁵

Absence of Advertising Disclosure: The content does not include an explicit label or indication that it is a commercial communication. When evaluating advertisements, the Board considers whether the average consumer would understand the content as advertising. Therefore, it is obligatory that the advertising nature of the content be clearly indicated.

Promotion Outside of Advertising Spaces: The advertisement is placed within editorial content such as news, articles, or programs instead of designated advertising slots.

Commercial Purpose: As per Article 61/4 of the LPC, the promotion must have a commercial aim. This is a subjective criterion and is evaluated based on the perception of an average or reasonable consumer.

Use of Elements Related to a Specific Product/Service/Brand: The content contains brand names, logos, trade names, or guiding contact information.

Disproportionate Emphasis: The time, space, or emphasis given to the promoted element is excessive or incompatible with the overall context. For instance, in Decision No. 20 of the 109th meeting dated October 11, 2004, the prolonged display (3–4 minutes) of a branded shopping bag in a TV series was found to be disproportionate and was deemed covert advertising by the Board.⁶

(In News) Exceeding the Limits of the Right to Inform: The primary purpose of the news is not to inform, but to promote. For example, in the Board's Decision No. 6 of the 303rd meeting dated November 10, 2020, a news-like article that praised a private tutoring center and included its address was deemed covert advertising on the grounds that it exceeded the limits of the right to inform.⁷

Supervision and Sanctions

According to Article 63 of the LPC, advertisements are supervised by the Advertising Board, which is formed and assigned under this law. The Board evaluates advertisements by considering the perception of the average consumer.⁸ Moreover, the Board examines advertisements across all media types, particularly television, internet, newspapers, posters, and social media, and may impose a suspension penalty and, depending on the nature of the violation, an administrative fine. These administrative fines vary according to the medium of publication and are updated annually. For 2025, these penalties range from TRY 79,161 to TRY 31,808,530.⁹ Additionally, as per Article 12 of the LPC, if the same violation occurs again within one year, the Board may increase the administrative fine up to tenfold.¹⁰

For instance, in Decision No. 2020/1557, an article published in a magazine was examined. The Board found that the article directed consumers toward a specific throat lozenge product, that the ingredients of the product were listed at the end, and that expressions suggesting the ingredients protected against viruses were included—indirectly encouraging the product's purchase. Accordingly, the content was deemed covert advertising and a suspension penalty was imposed.¹¹

Similarly, in Decision No. 2021/809, a social media account belonging to a person with 2 million followers was examined. Although there were advertising agreements with certain brands, there was no disclosure that such a collaboration existed. Since the posts were not clearly identifiable as advertisements, covert advertising was deemed to have occurred and a suspension penalty was imposed.¹²

Likewise, in Decision No. 2020/501, a social media account sharing content related to dietary supplements was examined. It was determined that the promotional content did not include any statement indicating that it was advertising. Therefore, the prohibition on "covert advertising" under the advertising legislation was found to have been violated, resulting in a suspension penalty and an administrative fine of TRY 104,781.¹³

Conclusion

Covert advertising is an unlawful practice that violates the principle of transparency, carries the risk of misleading consumers, and leads to unfair competition. The legislation explicitly prohibits and monitors such advertisements. Advertisers are required to ensure that advertisements are clearly distinguishable and to comply with legal regulations. With the increasing use of digital platforms such as social media, the forms of covert advertising are diversifying, thereby increasing the importance of supervision mechanisms and public awareness. In the event of an administrative sanction, individuals or entities concerned have the right to object or seek legal remedy through the judiciary.

Reference

10.11.2020 tarihli 303 Sayılı Reklam Kurulu Toplantısı Basın Bülteni. (2020, 11 10). Retrieved 03 2020, from Türkiye Cumhuriyeti Ticaret Bakanlığı: https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fticaret.gov.tr%2Fdata%2F5d1c9edd13b87615344cd4c8%2F303_RK_Basin_Bulteni.docx&wdOrigin=BROWSELINK

13.04.2021 tarihli 308 Sayılı Reklam Kurulu Toplantısı Basın Bülteni. (2021, 04 13). Retrieved from Türkiye Cumhuriyeti Ticaret Bakanlığı: https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fticaret.gov.tr%2Fdata%2F5d1c9edd13b87615344cd4c8%2F308_RK_Bulten.docx&wdOrigin=BROWSELINK

14.07.2020 tarihli 299 Sayılı Reklam Kurulu Toplantısı Basın Bülteni. (2020, 07 14). Retrieved from Türkiye Cumhuriyeti Ticaret Bakanlığı: https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fticaret.gov.tr%2Fdata%2F5d1c9edd13b87615344cd4c8%2F299_Reklam_Kurulu_Bulteni.docx&wdOrigin=BROWSELINK

6502 Sayılı Tüketicinin Korunması Hakkında Kanun. (2013, 11 28). Retrieved from Resmi Gazete: https://resmigazete.gov.tr/eskiler/2013/11/20131128-1.htm

6502 Sayılı Tüketicinin Korunması Hakkında Kanunun 77 nci Maddesine Göre 2025 Yılında Uygulanacak Olan İdari Para Cezalarına İlişkin Tebliğ. (2024, 12 20). Retrieved from Resmi Gazete: https://www.resmigazete.gov.tr/eskiler/2024/12/20241220-3.htm

Erol, A. (2017, Aralık). Türk Hukukunda Örtülü Reklam. İstanbul Şehir Üniversitesi.

Korkmaz, A. (2022). Sosyal Medya Etkileyicilerinin Yaptığı Tanıtımların Örtülü Reklam Yasağı Bakımından Değerlendirilmesi. TBB Dergisi(160). Retrieved from https://tbbdergisi.barobirlik.org.tr/m2022-160-2054

Özdemir, H. (2004, 08 01). Aldatıcı Reklamlara Karşı Tüketicilerin Korunması, Ankara Üniversitesi Hukuk Fakültesi Dergisi. Retrieved from DergiPark Akademik: https://dergipark.org.tr/tr/pub/auhfd/issue/42647/514187

Özdil, Ö. (2023, Nisan). Tüketici Hukuku Bakımından Sosyal Medyada Örtülü Reklam. TOBB Ekonomi ve Teknoloji Üniversitesi.

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