Based on statistics of a global research Turkey is among the 15 countries with the longest time of both daily internet usage and social media usage. In 2021 there were 54 million social media users in Turkey; equal to 64 percent of the country's population.
Influencer marketing through social media influencers has achieved giant growth in the advertising sector. Brands, including global and local ones, cooperate with social media influencers to advertising their brands, goods, services because social media influencers are very capable of directing the consumers’ buying habits into certain brands via the presentations, recommendations and compliments they make.
In Turkey, there are no specific laws relating to advertising through social media. The term ’social network provider’ is defined in the Law no. 5651, also known as Internet Law, as a term to cover social media. Certain obligations on social network providers with respect to their corporate existence in Turkey have been implemented. But there are no particular provisions regarding advertising in social media. There are no specific laws, regulations, or self-regulatory rules related to influencer marketing via social media. General advertising rules and principles of Consumer Protection Law and the Regulation on Commercial Advertisements and Unfair Practices (Advertising Regulation) related to advertisements are applied in this area. Supervision of advertisements via social media is subject to the same laws and regulations as advertisements in any other kind of media. Influencer marketing should also adhere to rules regarding conformity to public order, fair competition, public/moral values, and accuracy, which are main principles regulating advertising in Turkey.
This Practice Note is intended to give an overview of the key issues related to adverting in social media and influencer marketing in Turkey. It covers:
- influencer marketing from the perspective of testimonial advertising rules
- influencer marketing from the perspective of ‘hidden’ advertisement,
- prohibited advertising of certain categories of products
- contests and sweepstakes organised by social media influencers on social media as type of advertising
- sanctions
- agreements with Influencers
Influencer marketing from the perspective of testimonial advertising rules
Influencer marketing can be categorised as a particular form of testimonial advertising. Although testimonials are not defined under the Consumer Protection Law, which is the main legislation regulating advertisements in Turkey, the Advertising Regulation provides certain rules and limitations on testimonials.
Testimonials generally consist of written or spoken statements of individuals who have used the product that is being advertised, communicating about the quality and/or superiority of the product. The Advertising Regulation stipulates that advertisements shall not include or refer to any testimony or endorsement that is not authentic, and not based on the experience of the testifier.
Regarding influencer marketing, the problem arises when the social media influencer is sharing an experience that is fictional, pursuant to their advertising agreement with the brand owner. This can be considered to be a misleading advertisement which is strictly prohibited under Turkish law. It is the main principle that all advertisements should be accurate, honest and the claims in advertisements are required to be proven. This rule applies to influencerial marketing, too. As they are considered to be a type of testimonial advertisement, the accuracy of the advertisements and the proof of the claims in the advertisements are very important. In testimonial advertisements, testimonies or confirmation statements that are not based on the real experience, knowledge or research of the experts, institution or organisation should not be used in advertising.
It is frequently seen that the statements of the social media influencer are comparative with the rival products. When the social media influencer is supported or sponsored by a brand, the statements of the influencer incorporating any comparison could be considered as comparative advertising within the meaning of Advertising Regulation and the liability for proving the claims in the advertisement could be attributed to the brand owner as the advertiser. This is important in terms of aggravated burden of proof sought in claims regarding comparative advertisements. Every claim in comparative advertisements should be proven with reports obtained from universities, accredited testing institutions or independent research institutions. Although some abstract comparative claims could be tolerated and are not expected to be proven, the Advertisement Board imposes sanctions on statements such as: “the best, the number one in the world etc.’’ on the ground that these claims exceed abstract claims, and they should be proven.
Influencer marketing from the perspective of ‘hidden’ advertisement.
Another issue of law regarding influencer marketing is when the social media influencer, who is financially supported by a brand, does not explicitly communicate this affiliation or the fact that its post essentially serves as an advertisement for the brand. Such behaviour is contrary to the prohibition of ‘hidden’ advertisements. In this scenario the consumer could think that the social media influencer shares their sincere opinion about the product or services without having any affiliation with the brand owner although the social media influencer is in fact supported by the brand. This act could be considered as violation of the hidden advertisement ban.
‘Hidden’ advertisements are advertisements which are not explicitly identified to the consumer as an advertisement but there is an advertising purpose in it. Hidden advertisements are prohibited as the consumer is caught unprepared without the knowledge that it is an advertisement. As per the Consumer Protection Law, the inclusion and presentation for promotional purposes of names, trade marks, logos or other distinctive marks or expressions in connection with goods or services, trade names or company names in news, broadcasts, publications, and programs without explicitly indicating that such inclusion and presentment is for advertising purposes is considered to be hidden advertisement. It is forbidden to make implicit advertisement via communication tools of all kinds visually, aurally or in writing.
Unlike other jurisdictions, no clear guidance has been published in Turkey for disclosure obligations for social media advertisement. However, the Advertising Regulation sets forth the basic principles to be considered in terms of hidden advertisement, including that an advertisement should be clearly distinguishable, regardless of the format, or the broadcasting media.
The solution to eliminate hidden advertisement risks when it comes to social media influencer marketing is to clearly disclose the relationship between the social media influencer and the brand. The consumer, when making its buying decision, should be able to take this into consideration. Influencers should clearly cite their affiliation with the brand in their posts containing advertorial content. This should be done in a way that the consumer could not miss. For eliminating associated risks, the distinctive sign, trade mark could be cited as sponsor. It is also advised to use specific signs like #advert, #sponsored by (or similar) on influencer posts. Otherwise, the acts of the influencer could be considered as hidden advertisement and could be sanctioned based on the relevant rules.
Prohibited advertising of certain categories of products
The general advertising rules and principles are applied to social media advertisements. Hence the advertising restrictions for certain category of products and services should carefully be regarded in social media advertisements. For example, the advertising of alcohol products, tobacco products and pharmaceuticals to consumers are forbidden under Turkish law. There is a total ban and any public notification or announcement using the names, logos, signs, and any other distinctive elements of the alcohol products could be considered violation of this restriction. Advertising of prohibited categories of products such as tobacco/alcohol products, pharmaceuticals through influencer marketing are also considered as circumventions of the law and could be banned. Hence the advertising prohibitions and restrictions should carefully be respected in influencer marketing.
Contests and sweepstakes organised by social media influencers
It is common for social media influencers to organise sweepstakes in their social media pages. These are generally the chance-based prize draws and are rarely skill-based contests. Sweepstakes and contests are permissible subject to certain legal rules under Turkish law:
- chance-based sweepstakes where cash is given as a prize, can only be conducted by the National Lottery Administration (NLA) itself who is the sole authority to organise lotteries and draws with a cash reward and who can permit lotteries and draws with a non-cash reward
- the chance-based prize draw and skill-based contests where the prize is non-cash can be conducted by real or legal persons under specific legal requirements. If the monetary value of the non-cash prize, in 2021, exceeds TL 154,06 (approximately EUR 20) in a prize draw, then the organisation conducting the promotion is required to obtain the official permission of the NLA. For skill-based contests, there is no need for registration or to get permission from the NLA
Other than the above rules there are no specific laws, regulations, and self-regulatory rules governing sweepstakes and contests conducted through social media. On the other hand, since scrutiny over social media contests and sweepstakes is not as strict, it is possible to observe many prize draws, which should be subject to NLA’s permission, being drawn via social media platforms without such authorisation and without complying with the advertisement restrictions. The NLA recently started monitoring compliance over social media and has issued warnings to those who conduct unauthorised prize draws via their social media pages, webpages.
Sanctions
The surveillance of the public authorities
The Ministry of Trade (Ministry) published an announcement in 2017 when social media advertising started to expand in Turkey. Referring to Guidance of International Consumer Protection and Enforcement Network (https://icpen.org/) the Ministry warned the consumers against misleading advertorial content, untrue comments of social media influencers and clearly cited the necessity for disclosureof the relationship between advertisers and the influencers advising on their products / services . The Ministry informed the consumers that the posts, comments, advice, statements of bloggers, vloggers and influencers should carefully be observed, and they should be considered advertorial content.
The Advertisement Board, which is established under the Turkish Ministry, is the main authority to control advertisements in Turkey, the Advertisement Board’s duties are not restricted to reviewing any form of media, therefore, all forms of social media advertisements are also legally subject to review.
Despite the strict scrutiny of the Advertisement Board in terms of advertisements published in TV, radio, outdoor and printed media, the control of social media content has been weak due to the lack of specific rules related to advertising and marketing via social media. There were only few decisions of the Advertisement Board against advertisements on social media up tol 2020.
The Advertisement Board paid particular attention to misleading and unfair advertisements broadcasted on social media in 2020. As coronavirus cases spread in Turkey and around the globe in 2020, health claims in ads for food supplements and food claiming to prevent the effects of the virus were rampant in every media including internet and social media. The Advertisement Board launched a comprehensive investigation into these unlawful advertisements and strictly monitored the social media advertisements. The Advertisement Board imposed serious sanctions against hidden or misleading advertisements on social media and unfair advertisements of certain food presented with incorrect health claims by celebrities in their social media pages.
The decisions of the Advertisement Board rendered during the Covid-19 outbreak are mainly focused on misleading health claims. Consumer health is a topic where the Advertisement Board’s surveillance enjoys high importance. However, it is expected that the scrutiny of the Advertisement Board of social media advertisements will continue gaining strength in the coming years for various topics but not limited to health claims and consumer health.
Possible sanctions and fines
As explained above all forms of social media advertisements are legally subject to review of the Advertisement Board which can initiate ex-officio surveillance or surveillance on complaint of consumers or competitors.
The potential remedies are:
- temporary (up to 3 months) or permanent prevention of broadcast of the advertisement
- correction of the advertisement through the same media
- administrative monetary fine corresponding to TL 114.326 (approximately EUR 15.000) for ads in digital media
These sanctions could be jointly or separately imposed. The amount of the administrative monetary fine is updated each year. Where the same infringement is repeated within the period of year, the Advertisement Board is entitled to impose the above mentioned administrative monetary fines up to ten times.
The Advertisement Board could impose the administrative monetary fine on the advertiser or the owner of the media where the advertisement is broadcast. It is also possible to impose the monetary fine on both the actual advertiser and media owner. This is common in social media advertisements.
Agreements with Influencers
There is no specific rule under Turkish law stipulating the agreements with the influencer. The agreements will be governed by the general rules of Turkish contracts law as well as related clauses of IP Code, Copyright Law, Turkish Commercial Code, Consumer Protection Law where applicable. As so It is possible to directly conclude agreements with the influencers it is also permissible to make agreements with the advertising agencies acting on behalf of influencers.
Apart from boilerplate clauses and general clauses of agreements relating to parties, payment, termination the key provisions in an influencer agreement are the followings:
- Scope of services: The scope of services should carefully be determined. It is important to draw the scope of the services e.g. content the influencer will create, type of content, timing, any specific expectation of the brand owner etc. before initiating the advertising campaign.
- Liability clause: This is one of the most important clauses that is advised to be incorporated in an agreement with influencer. As explained above, general advertising rules should be respected in social media advertisements and influencer marketing. In this respect a clause related with compliance to general advertising rules under Turkish law is advised to be included in the agreements with individual influencers and influencer agencies that engage influencers on behalf of advertisers. It is crucial to cite which party will be liable for inconsistencies with the applicable advertising law. It is generally advised that the advertiser is responsible for incompliance as long as the influencer acts within the scope of the directions of the advertiser. It is also advisable to hold the influencers liable for their activities out of the scope of the agreement. For eliminating possible risks it can be useful add a control clause to the agreement.
- Control clause: This is entirely under discretion of the advertiser as this clause can harm the natural flow of the influencer advertising campaign. Many influencers do not prefer this kind of clauses as they feel unfree due to control of their actions.
- Copyright clause: Turkish copyright law adopts formalistic approach in relation to copyright ownership of the content which can be protected as a ‘work’ under Turkish law. If the transfer of the rights over the copyrighted content created by the influencer is important for the advertiser / brand owner it is advisable to include a copyright clause in the agreement. Turkish Copyright Law rules that the author of a work is the person who creates it. Work for hire principle is not accepted under Turkish law. As per this principle it is likely that the influencer could be the author of the advertisement if it could be considered as a work. The rights should be assigned to the brand owner if the content is intended to be used by the advertiser in other media.
The agreement should specify that the content the influencer provides should not infringe upon any third party rights, namely IP rights including but not limited to trademarks, copyright as well as rights of publicity. In case the content involves third party trademarks this could be considered as trademark infringement. Or the uncleared rights of other individuals in the content like their appearance, rights on the name, visual, voice etc. could give rise to infringement of personal rights of others. The influencer should be engaged to clear these rights and agree his / her liability arising from infringement.
- Governing law: When the advertiser is a foreign brand it is frequently observed that the brand owner wishes the agreement to be governed by the laws of its country. The choice of law and jurisdiction, in principle, is valid in contractual relations. However, the public order norms like Turkish copyright provisions, intellectual property provisions would still apply due to territoriality principle. This does not prevent choice of law, yet.
First published by LexisNexis in Feb 15, 2021.