Turkish Constitutional Court (“Court”) annulled the paragraph 12 of Article 77 of the Consumer Protection Law, which granted the Advertisement Board (“Board”) the power to partially or entirely block access to websites containing unlawful advertising content. The relevant rule was considered to be unconstitutional pursuant to the Court’s decision dated 13 September 2023 and numbered 2022/70 E. - 2023/152 K. which was published on the Official Gazette dated 27 October 2023 and numbered 32352. Since the legal gap, that might arise due to the annulment of the subject rules, is deemed to damage public interest, it has been decided that the Court’s decision will enter into force nine months after the publication of the decision in the Official Gazette. Therefore, the annulment provision duly entered into force on 27 July 2024.
As mentioned in our article titled “Advertisement Board’s Power to Block Access was Annulled[1]” the Court did not rule that the mere fact that the Advertisement Board was equipped with the power to block access to websites was unconstitutional per se. However, the Court concluded that the structure of the subject administrative sanction under the Consumer Protection Law was not in compliance with the principles of proportionality and necessity. In our article, we have therefore assessed that it may be appropriate to re-establish the administrative sanction mechanism, grounding it on a concrete basis that balances the principle of consumer protection with other constitutional freedoms and taking into account the proportionality and necessity principles as guided by the Constitutional Court's decision.
Indeed, with the amendment made to the Consumer Protection Law on May 23, 2024, which came into effect on May 29, 2024, the legislative authority restructured the Advertisement Board’s power to block access, taking into account the principles of proportionality and necessity highlighted in the Constitutional Court’s decision. Accordingly, if unlawful advertising activities occur online, the Advertisement Board may issue a blocking access decision if the advertiser does not remove the content within twenty-four hours of receiving a notification made through electronic communication tools based on information obtained from the website’s contact details, domain name, IP address, and similar sources. The decision to block access will primarily be limited to the content where the violation has occurred. However, if blocking access to the content related to the violation is technically impossible or if blocking access to the specific content does not prevent the violation, a decision may be made to block access to the entire website.
In this context, as an extremely effective form of oversight and administrative sanction, the Advertisement Board continues to use its power to block access to the infringing advertisements when necessary. For example, the Advertisement Board, in its meeting dated 11 June 2024 and numbered 346, determined that a website, which misleadingly implied that it was authorized to sell products belonging to a well-known electronics brand despite having no commercial affiliation with the brand and failed to deliver the products despite accepting payments from consumers, was engaging in misleading practices and violating the principles of fair competition. As a result, the Board decided to block access to the unlawful website in question. This decision was entirely appropriate, as it aimed to effectively cease the violation concerning a website engaged in deceptive advertising and commercial activities that misled and exploited consumers' trust.
Indeed, since the date when the power to block Access was first regulated and came into effect under the Consumer Protection Law (October 1, 2022), the Advertisement Board had effectively and fairly exercised its power to block access to web pages containing unlawful advertisements. An examination of the decisions made during this period reveals that the power to block access was an effective sanction mechanism. Therefore, when the legislative authority re-established the Advertisement Board’s power to block access under the Consumer Protection Law, it is evident that the proportionality and necessity principles highlighted in the Constitutional Court's decision regarding the annulment of the initial regulation were considered, and the Board’s authority to block access to infringing content was accordingly revised.
We believe that the regulation regarding the Advertisement Board's power to block access is significant for protecting consumers against unfair commercial practices, ensuring effective competition in the market, and providing comprehensive oversight against violations of trademark rights.