It has been a matter of debate in Turkey for some time whether social media collaborations and advertisements made by influencers are subject to a separate level of scrutiny or whether such activities should be interpreted within the scope of general advertising rules and principles.
As there is no specific regulation governing social media related advertising activities, until now the approach has been that such advertisements are subject to the general principles of advertising legislation set under relevant laws, such as the Consumer Protection Law No. 6502, the Commercial Advertising and Unfair Commercial Practices Regulation No. 20435, and the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications No. 5651.
To clarify the matter and to ensure uniformity in practice, the Turkish Ministry of Commerce published its first Guidelines on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers (“Guidelines”) on 5 May 2021. You can see the Guidelines here. (Available in Turkish only)
Scope of the Guidelines
The Guidelines define the term social media influencer (“influencer”) as a person who engages in marketing communication through a social media account with the aim of ensuring the sale or rental of a product or service, or of informing or persuading a target group. The definition in the Guidelines is important as it places the actions of such influencers directly within the scope of commercial marketing activities.
The Guidelines make reference to the general commercial advertising provision that prohibits covert advertisements in all kinds of communication tools; whether such advertisements take audible, written or visual form, and emphasizes that the same rule applies to social media advertisements. Therefore, names, brands, logos or other distinguishing expressions relating to goods or services may not be displayed in a promotional manner without explicitly indicating that it is an advertisement. The Guidelines highlight this general advertising principle, and state that influencer advertisements must also be clearly expressed in the format and expressions listed in the Guidelines and distinguishable regardless of the channel on which they are published.
The Guidelines also oblige influencers to comply with certain disclosure and format rules in their advertising activities to indicate whether a piece of published content, including live streams, constitutes a commercial activity. The disclosure and format rules in the Guidelines are specified separately for each advertising channel; namely video sharing channels, photo and message sharing channels, podcast channels, and channels on which content can only be viewed for a limited time.
According to the Guidelines, advertising related tags and statements used in social media content should comply with the following rules:
- Tags and statements must be distinguishable from the colors and background used in the relevant post and must be in an easily readable size.
- They must be indicated in a way that allows consumers to understand that the relevant post is a commercial advertisement when they first encounter it without having to do anything else.
- They must be presented in a way that can be noticed by consumers at first glance, taking into account the interface and technical features of the social media channel on which a post is published.
- If other tags or statements are also included in the relevant post, the main tags and statements regarding commercial activity should be visible among other tags.
The Guidelines not only determine the legal framework of the disclosure and formatting rules regarding tags and statements in social media posts, but they also impose a number of restrictions on the content of posts by influencers relating to commercial advertising. According to Article 6 of the Guidelines, influencers cannot:
- share a post for commercial purposes regarding a product or service that they have not yet experienced,
- make a health-related statement regarding a product or service in violation of the relevant legislation,
- assert a claim about unproven scientific research or a test result that is not based on objective, measurable, numeric data,
- direct the consumer to products or services that are normally offered by physicians, dentists, veterinarians, pharmacists and health institutions, or promote such products or services,
- create the impression that they have purchased a product or service that has been gifted by an advertiser,
- create the impression that they are merely a consumer in scenarios from which they have gained financial benefit from the commercial advertising of the relevant product or service,
- promote a product without explicitly stating that the content has been photographically filtered if any effect or filter application is used,
- systematically and collectively create or use fake or nonexistent identities to communicate about a product or service through social media.
Additionally, the Guidelines also oblige advertisers to inform influencers about the above-mentioned rules and encourage them to fulfil the obligations arising from the advertising legislation. The Guidelines further underline that advertisers cannot disclaim their obligations on the grounds that these rules are solely the responsibility of influencers with whom they collaborate. This provision is particularly significant in the determination and assignment of responsibility in the social media advertising ecosystem.
Although Turkish influencers have already started to use such tags in practice, the tags used by some influencers could be quite invisible and camouflaged inside a post, leaving their target group unaware that it is an advertisement or collaboration. With the publication of the Guidelines, it is now clear that these indications must formatted so that can be easily recognized by consumers.
The Guidelines also touch upon the problem of presenting gifted products as purchases, which is one of the main criticisms levelled against posts shared by influencers on social media. Although this issue should have been considered within the scope of covert advertising, which is prohibited by the general provisions of advertising, the Guidelines have clarified the issue, leaving no question about social media advertisements.
Explicit provisions pertaining to health claims relating to products and services are also significant in light of recent decisions taken against social media influencers advertising certain products during the Covid-19 pandemic.
Finally, there is no clarity in the Guidelines about the language of the ad-related tags and statements. Considering some influencers use hashtags in foreign languages to draw less attention from certain follower segments, clarity on the issue should be included within the scope of any subsequent Guidelines.