Advertisement Board, with its highly controversial decision on November 2020; deemed the promotions and the sales of products such as t-shirts, sweatshirts, coffee mugs, phone cases, beach towels offered for sale on various e-commerce sites with expressions ”normal”, “LGBT”, “LGBT Power”, “Equality, Bisexual, Freedom, Lesbian, Gay, Love is Love, Homosexual”, LGBT Relationship”, “Love is Love”, “Pride”, “Peace”, “Love is Love”, and rainbow themes without +18 markings against the Constitution and the Advertising Regulation. The advertisements without this warning at the date of referred examination were ordered to be ceased.
The Advertisement Board adopted a new principle of marking the promotions and sales of such products with +18 warnings on websites while not prohibiting the sales of such products.
In the referred decision, in line with the principle for the protection of children’s interests secured by the Turkish Constitution, the international treaties and the legal provisions based on the requirement of preserving children’s emotions and innocence in media activities such as news promotion or advertising for a commercial product, and broadcasting by avoiding any prejudicial effect to them, the Advertisement Board has appreciated that the products pertaining to the sexual orientation containing sexuality and eroticism have to be offered to the sale with the “+18” markings in the products and the promotions subject to the examination and the sales and the promotions of the referred products without warning are intended to perturb and change children’s and adolescents’ mental, ethical, psychological and social development.
The referred decision is additionally based on Article 24 of the Advertising Regulation, which reads as “The advertisement that is children-oriented or is likely to affect the children or in which the child actors feature, shall contain no expression or image that is likely to influence a child’s physical, mental, ethical, psychological and social development negatively and no factor intending to perturb, alter or defame the cultural, ethical or positive social behaviours.”
The decision is open to criticism from several aspects. There is no legal disposition under Turkish law regulating the sales of the products containing the referred themes and expressions with “+18” marking. There is no restriction in the Constitution where fundamental rights and freedoms such as equality and freedom of thought are regulated. Article 24 of the Advertising Regulation, on which the decision is based, indicates that the advertisements shall contain no expression or image likely to negatively influence a child’s physical, mental, ethical, psychological, and social development.
The Advertisement Board has adopted a brand new principle regarding the commercial advertisements and promotions by the referred decision. According to the decision, the “+18” marking shall be indicated on the promotions and product listings of the products offered to the sale with rainbow themes or expressions like “LGBT” and “pride” on e-commerce websites. The legitimacy of this novel principle and limitation is quite arguable while this restriction that is not enacted in any piece of legislation and implemented into the legal system by the decisions of the Advertisement Board can be claimed not to have a legal basis.
It is fair to say that the decision is quite contentious in terms of its content and grounds. The restriction of the usage of rainbow themes is one of the controversial approaches taken in the decision to preserve children’s emotions and innocence. As per the Preamble of the Universal Declaration of Human Rights, “Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, the ground and the justification of the assessment based on several international treaties and the Constitution by the Advertisement Board that the usage of the expressions meaning “pride”, “peace”, “equality” and “freedom” effects negatively children’s and adolescents’ development are not manifestly set forth.
Additionally, the products offered to the sales are ordinary daily used products like phone cases, coffee cups, t-shirts, etc., and not the products about sexual orientation as stated in the decision. The Advertisement Board’s qualification of the expressions and the colours on the products as intended to perturb or alter the cultural and ethical social behaviours contains the seeds of further conflicts within the framework of the freedom of expression.