Advertising is defined as presenting a product, service, activity, or corporate identity in audio, visual, or written form. The advertising industry is evolving to an entirely different point with the competition created by technology, different creative approaches, and the promotions that force the imagination that arise with the combination of both. Considering the diversity of the products and services promoted, there are several regulations for the benefit of the consumer. In this article, we examined the Advertisement Law in Turkey.
General Regulations
Although the Advertising Law legislation consists of multiple regulations, the basis of the discipline is the Law on the Protection of the Consumer No. 6502 ("Law on Consumer Rights") and the Regulation on Commercial Advertisement and Unfair Commercial Practices ("Regulation") prepared based on the Law on Establishment and Broadcasting Services of Radio and Televisions No. 6112. ("Law on the RTUK").
Since the target audience of commercial advertisements is the consumer, it is envisaged to apply different principles to protect the various interests of the consumer. As a matter of fact, in Article 2 of the Commercial Advertisement and Unfair Commercial Practices Regulation, it is stated that the scope of the regulation is "all kinds of commercial advertisements and unfair commercial practices aimed at the consumer".
Advertising Principles and Guides
It is envisaged that media service providers will broadcast their broadcast services in accordance with the principles determined by the Law on the RTUK, with a sense of public responsibility. Although these broadcast service principles are included in Article 8 of the Law on the RTUK, there is a wide regulation.
On the other hand, the general principles have been determined within the scope of the Commercial Advertisement and Unfair Commercial Practices Regulation and are as follows:
It cannot contain expressions or images contrary to general moral rules.
It cannot be harmful to public health.
It cannot contain elements that disrupt public order, cause, condone, encourage or support violent acts and illegal or reprehensible behavior.
It cannot contain expressions or images that abuse patients, children, the elderly, and the disabled.
It cannot contain defamation, abuse, prejudice, or discrimination against language, race, color, gender, political thought, philosophical belief, religion, sect, and similar characteristics.
It cannot be done in a way that harms human dignity and personal rights.
It cannot contain statements or images of anyone's private or social life without prior permission; advertisements may not refer to that person; the private property of the person cannot be displayed or indicated in a way that creates the effect of personal approval given to the relevant product or organization.
It cannot exploit the fears and superstitions of consumers.
It cannot contain statements or images related to illness, injury, or a similar situation, in a way that causes public concern or misleads.
It cannot contain any presentations or descriptions of applications and situations where safety rules are not observed and may pose a safety hazard.
As can be seen, broadcast service principles and general guidelines are included to prevent advertisements that may cause harm to the public.
Advertisements are not limited to these principles, but it is aimed to protect the interests of the consumer in other laws and regulations.
Supervision of Ads
Advertisements are not subject to any legal control, except for the advertiser and the advertising agency, before they are published. As a matter of fact, it is stated in paragraph 1 of Article 6 of the Law on the RTUK that "the content and broadcasting of broadcast services cannot be interfered with beforehand and the content of broadcasts cannot be controlled in advance".
Article 34 of the same Law stipulates that "the Radio and Television Supreme Council ["the RTUK"], which is an impartial public legal entity with administrative and financial autonomy", was established for the purpose of regulating and supervising the radio, television, and on-demand broadcasting services sector. The RTUK has the authority to regulate and supervise radio and television broadcasts in general. On the other hand, with the Regulation of the Board of Advertisement, published in the Official Gazette dated 03.07.2014 and numbered 29049, which also includes different interest groups, the Board of Advertisement is the supervising authority for advertisements in Turkey.
The Board of Advertisement consists of nineteen members appointed from different institutions and organizations. The mentioned institutions and organizations include the Turkish Bar Associations, Turkish Standards Institute, and TOBB.
The Board of Advertisement determines the principles to be followed in commercial advertisements and makes arrangements to protect the consumer against unfair commercial practices. At the same time, it takes into account the universally accepted definitions and rules, and developments as well as country conditions.
The duties of the Advertisement Board are as follows:
To determine the principles to be followed in commercial advertisements in accordance with the principles specified in the Law on Consumer Rights, to make arrangements to protect the consumer against unfair commercial practices, and to announce them through the Ministry of Commerce.
Examining commercial advertisement and unfair commercial practices within the framework of the principles set out above and conducting audits when necessary.
In case of violation of the obligations specified in the Law on Consumer Rights according to the results of the examination or audit, the implementation of the administrative sanctions specified in the Law on Consumer Rights.
The Board of Advertisement may initiate an investigation and audit ex officio and upon complaint. Therefore, there is no obligation to initiate an audit upon the complaint of some advertisements. The mandatory matters to be included in the petition within the scope of the application are included in the 8th article of the Advertisement Board Regulation.
Comparative Advertising
In Article 3 of the Commercial Advertisement and Unfair Commercial Practices Regulation, comparative advertisements are defined as "advertisements that compare the aspects of the promoted goods or services with competing goods or services for the same purpose or meeting the same need".
Comparative advertisements are subject to certain conditions in the Regulation. These advertisements must comply with the following conditions as well as complying with the Board of Advertisement's policies:
Not including the product name, brand, logo, trade name, business name, or other distinguishing elements of the competitors,
Cannot be deceptive and misleading,
Does not lead to unfair competition,
The goods or services being compared meet the same needs or are for the same purpose,
Comparing an issue that will benefit the consumer,
Objective comparison of one or more material, material, verifiable and typical characteristics of the goods or services being compared, including their price,
Claims based on objective, measurable and numerical data; scientific tests, reports or documents,
Not disparaging or discrediting competitors' goods, services, activities, or other characteristics,
In the comparison of the goods or services with a specified origin, the goods or services are from the same geographical location,
Does not cause confusion between the advertiser and the competitor's brand, trade name, business name, or other distinguishing mark or goods or services
In the Regulation, it is stated that the matters covered by the health declaration according to the relevant legislation cannot be compared in food advertisements.
Comparative advertising of supplements is prohibited in the aforementioned article.
Ads Containing Price Information
Article 13 of the Regulation includes regulations regarding advertisements containing price information. If the price of a good or service or the method of calculating the price is included in the advertisements, it is emphasized in the aforementioned article 13 that the price information given should be related to the advertised good or service.
It may be possible to give incomplete information about the price of the good or service through advertisement or to cause confusion due to price information. For example, practices in which the unit price of a product offered to consumers differ and, as a natural consequence, deceive the consumer, despite making changes in one of the elements such as quantity, length, weight, area, volume measurements, etc., are classified as deceptive practices in the legislation.
Ads and Child
Article 3, paragraph 1 of the United Nations Convention on the Rights of the Child, which entered into force in Turkey on May 4, 1995, defines the best interests of the child and is as follows:
"In all actions taken by public or private social welfare institutions, courts, administrative authorities or legislative bodies regarding children, the best interests of the child shall be considered as a priority."
Along with the United Nations Convention on the Rights of the Child, arrangements have been made for the best interests of the child in terms of advertisements. In the aforementioned Regulation, advertisements and provisions regarding children are divided into three groups; advertisements for children, advertisements that may affect children, and advertisements played by children. The provision regarding children is regulated in Article 24 of the Regulation.
Basically, it is aimed to prevent advertisements containing elements based on the possibility that children are prone to be affected and thus harmed, they may adversely affect the physical, mental, moral, psychological, and social development characteristics of the child, which may result in the abuse of the relationship with their parents through advertising, and cause unrealistic expectations in children or make it difficult to distinguish the difference between fiction and reality.
In paragraph 2 of the same article, it is stated that advertisements for any goods or services that will result in the establishment of a distance contract cannot contain an invitation to purchase directly targeting children.
Covert Advertising Ban
Covered advertising is defined in Article 4 of the Regulation and is as follows:
"It is the inclusion of trade names or business names with names, brands, logos or other distinctive shapes or expressions regarding goods or services in articles, news, broadcasts, and programs without expressly stating that they are advertisements, and presenting them in a promotional manner"
In Article 22 of the Regulation, it is stated that it is forbidden to make audio, written, and visual covert advertisements in all kinds of communication tools. As a matter of fact, in the general principles, it is stated that an advertisement should be clearly understood as an advertisement, regardless of its form and the medium in which it is broadcast, in order to protect the consumer.
Advertisement Bans
Another compliance factor that maintains its importance in the execution of advertising activities in Turkey is advertising bans. For reasons of security, public order and interest, and health, advertising is prohibited in some groups of goods and services, while in others it is subject to strict regulations.
A few of the advertising bans are as follows:
It is forbidden to make advertisements that exceed information about medical devices, drugs, and treatment methods.
Bans specified in the Independent Accountant Financial Advisor and Certified Public Accountant Professional groups Unfair Competition and Advertising Prohibition Regulation, Turkish Bar Association Advertising Ban Regulation, Advertising Regulation for Insurance and Reinsurance Companies.
Announcements and advertisements of real and legal persons cannot be made for gambling in the virtual environment.
It is forbidden to advertise the sale and presentation of tobacco products, cigarettes, and alcoholic beverages.
Advertising of smoothbore rifles, sports, and aiming rifles and pistols cannot be made in any way.
It is forbidden for the experts and mediators involved in the cases to advertise.
Advertisements are prohibited in commercial vehicles without a certificate of authorization.
Social Media and Advertisement
In 2021, the need for regulation has emerged in terms of advertisements made by people with a high number of followers on social media platforms. It is aimed to prevent the consumers from being affected by situations such as the fact that the so-called Influencers do not contain any statement regarding the advertisement even though it is a commercial advertisement, that the product or service is interpreted as if it has been tried without any experience, and that the health declaration is made in terms of goods and services in violation of the legislation. Based on this understanding, "Guideline on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers" ("Guide") was issued, based on the decision taken at the Advertisement Board meeting dated 4/5/2021 and numbered 309.
In the guide, the obligations of social media influencers are explained and explanations are given about the forms of advertisements.
The obligations of the social media influencer are gathered under the aim of protecting the consumer's health, safety, and economic interests.
Along with the guide, a social media influencer must clearly state that sharing is an advertisement in different ways in photo and video posts, along with promoting the product to be advertised.
For example, in a photograph featuring the advertised product, the post must include "advertisement", "cooperation with [advertiser]", "provided by @advertiser", "#advertisement" and similar phrases in the consumer-visible part of the post.
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