Author: Zeynep Ezgi Yanarates
Advertising, which has existed since the beginning of trade between people, is a marketing element that we encounter today on television, internet, radio, all kinds of social media tools, on the street; in other words, in all areas of life. Considering that advertisements, which have positive or negative effects on the consumer, and can reach a very wide audience, certain regulations have been made in order to protect the consumer. The administrative control method has been adopted in the supervision of advertisements, and it has been carried out by Supreme Council of Radio and Television and Advertisement Board (“Advertisement Board” or “Board”). The Advertisement Board determines the rules to be followed when advertising according to the principles set forth in Law on Consumer Protection No. 6502 (“Law No. 6502”) and the Regulation on Commercial Advertising and Unfair Commercial Practices (“Commercial Advertising Regulation”), and supervises commercial advertisements published in all types of media.
Application to Advertisement Board
Consumers, institutions, organizations and competing undertakings may apply to the Advertisement Board and, as well, an examination may be initiated ex officio by the Advertisement Board. Applications to the Advertisement Board may be made in writing or electronically via e-government. In the application to be made, it is required to include information, such as the date of publication of the ad that is the subject of the complaint, the media it has been published through, and the advertiser company.
In addition, it is expected that the violation of the complained of ad will be disclosed, and the originals of the advertisements, written or printed, will be attached to the petition. The images of those that cannot be added to the application form are expected to be provided by the applicant.
Criteria Evaluated by the Advertisement Board
Article 61 titled ‘Commercial Advertising’ of Law No. 6502 determines the basic principles that commercial advertisements must comply with. The basic principles have been evaluated in light of the Commercial Advertising Regulation and sample Advertisement Board decisions, below.
Compliance with Public Morals
According to Article 61/2 of Law No. 6502, it is essential that commercial advertisements comply with the principles determined by the Advertisement Board and public morals. Although it is stated within the scope of the referred to Article that advertisements must be appropriate for public morals, no specific regulation has been made on the criteria of compliance with public morals.
The criterion of compliance with public morals is detailed with Article 5 of the Commercial Advertising Regulation titled ‘Basic Principles.’ Accordingly, (i) the ads cannot exploit the fears and superstitions of consumers, (ii) the ads cannot contain expressions or images of patients before and after treatment, and (iii) the ads cannot use expressions or images that exploit patients, children, the elderly and disabled people.
Compliance with Public Order
In accordance with Article 61/2 of Law No. 6502, commercial advertising must comply with the public order. Similar to the principle of compliance with public morals, the criterion of compliance with the public order has not been explicitly regulated within the scope of Law No. 6502. However, within the scope of Article 5 of the Commercial Advertising Regulation, the advertisements (i) shall not be in a nature to harm public health, (ii) shall not contain elements that disrupt the public order, cause violent acts or illegal or condemned behavior, condone, encourage, or support these behaviors (iii) shall not include statements or images related to illnesses, injuries or similar situations that cause public concern or mislead the public and (iv) shall not contain any presentation or description regarding the applications and situations in which safety rules are not observed and which may pose a danger in terms of security.
For example, the Advertisement Board evaluated the statements, ‘Clean frequently touched surfaces and floors in your home with Domestos every day, stop viruses. Domestos kills the coronavirus, provides maximum hygiene,’ as the consumers may have the impression that there will be no virus contamination on the surfaces where the product is used, and this situation will mislead the consumers and disrupt the public health, in its ‘Domestos’ decision numbered 2020/1011.[1]
Compliance with Personal Rights
In addition to public morality and public order, it is essential that advertisements comply with personal rights. Article 5 of the Commercial Advertising Regulation provides that advertisements shall not be made in a way that harms human dignity and personal rights.
In addition, advertisements may not contain statements or images of anyone's private or social life without their prior permission.
Fairness and Honesty
While Article 61/2 of Law No. 6502 regulates that advertisements shall be fair and honest, the rules of honesty to be followed in advertisements have been set forth in detail in Article 7 of the Commercial Advertising Regulation.
For example, in a decision of the Advertisement Board, the statements ‘I wanted the fastest, fiber-based but I did not get it because they would want a home phone. (…) Call Vodafone right away and get supernet unlimited internet opportunities with prices starting from 49.90 TL per month without home phone and line fees" in Vodafone's advertisement, evaluated that the statements creates the perception for the consumers that home phone connection is mandatory in order for internet service companies to provide internet service; however, consumers are not obliged to purchase home phone and internet service together and, therefore, the referred advertisements do not reflect the truth, and constitute a violation of fair competition principles.[2]
Deceptive Advertisements
In accordance with Article 61/3 of Law No. 6502, commercial advertisements that deceive the consumer or exploit their lack of experience and knowledge shall not be made. In this context, giving false information about the content of goods and services, materials used, product type, date and place of production, price, and geographical and commercial origin of the product constitutes misleading advertising.[3] For example, advertisements are considered to be deceptive if the date of establishment of the undertaking does not match the truth, if it is claimed that the undertaking is the oldest or the most experienced in the market, the claims regarding the size and capacity of the undertaking do not reflect the truth, or the prices declared are lower than their actual prices.[4]
For example, in a decision of the Advertisement Board regarding the facility named ‘Asmalı Bahçe Pansiyon’ which does not have a Boutique Hotel Tourism Business designation from the Ministry of Culture and Tourism, the advertisements on the websites www.tripadvisor.com.tr and www.trivago.com.tr, as ‘Asmalı Bahçe Boutique Hotel’ are evaluated as deceptive and misleading.[5]
Covert Advertising
According to Article 61/4 of Law No. 6502, it is forbidden to make covert advertisements through all kinds of communication tools, such as audio, written and visual.
Covert adverting is defined as ‘Including the names, brands, logos or other distinctive shapes or expressions of the goods or services and trade names or business names for the purpose of advertising and presenting them in an introductory manner, without clearly indicating that they are advertisements,’ in Law No. 6502 and the Commercial Advertising Regulation.
For example, in a decision of the Advertisement Board, it determined that in an article in the InStyle Magazine, consumers were directed to a throat drop product named ‘Phytorelief’ by going beyond the purpose of informing, and the purchase of the product was indirectly encouraged by stating that it provides protection against viruses by mentioning the ingredients of the product in the last part of the article. It was evaluated by the Board that the product named Phytorelief was advertised covertly.[6]
Comparative Advertising
Article 61/5 of Law No. 6502 regulates that comparative advertising of competing goods or services that meet the same needs or made for the same purposes may be made.
Some conditions that will prevent the unlawful use of the comparison are discussed in detail in Article 8 of the Commercial Advertising Regulation. Accordingly, comparative advertisements can only be made if it complies with conditions, such as (i) it does not include the competitors' product name, brand, logo, trade name, business name or other distinctive elements, (ii) it compares a matter that benefits the consumer, (iii) objective, quantifiable assertions based on numeric data are proven through scientific tests, reports or documents, and (iv) it does not denigrate or discredit the goods, services, activities, or other aspects of the competitors.
In addition, in accordance with Article 10 of the Commercial Advertisement Regulation ‘Advertisements shall not insult, explicitly mock or disparage any person, institution or organization, commercial or professional activity, property or service, advertisement or brand.’
The Board examined Çaykur’s slogan as ‘This is Turkey's real tea,’ which was published in a variety of channels, and decided that the slogan implies that only Çaykur branded tea is real tea, and the other producers do not produce real tea. For this reason, it was determined that the advertisement causes unfair competition by denigration.[7]
In a decision of the Board, it has come to the conclusion that the statement, ‘Ariel is the best at removing stains with a single wash,’ would create a perception of comparison with all competitors and, thus, constitutes a violation.[8]
Burden of Proof
Article 61/6 of Law No. 6502 regulates that advertisers are obliged to prove the accuracy of the claims in their commercial advertisements. For example, in a decision on water treatment plants, the Board evaluated that the statements, ‘Our filters remove 99.99% of lead and asbestos and more than 62 other harmful contaminants, harmful organic matter and bacteria.’ in the advertisements are objective, measurable and based on numerical data and, therefore, their accuracy is in need of proof with scientifically valid information and documents. However, since these claims could not be proven by the advertising company, the advertisements were suspended.[9]
Penalties Imposed by the Advertisement Board
Pursuant to Article 77 of Law No. 6502, if the Advertisement Board determines that there is a violation of the provisions of Article 61 of Law No. 6502 or the Commercial Advertisement Regulation, the Board may apply sanctions, such as halting the broadcasting of the advertisement, correcting it through the same method, or imposing administrative fines. Decisions made by the Advertisement Board are published on the website of the Board.
Appeal Path against Decisions of the Advertisement Board
Pursuant to Article 78 of Law No. 6502, an action for annulment may be filed against administrative sanction decisions issued by the Board, in the administrative courts within 30 days of the notification of the decision to the addressee. The decision of the first instance court may be appealed in the Regional Court of Appeals or in the Court of Cassation if the conditions specified in Articles 45 and 46 of the Law on Administrative Procedure No. 2577 are met.
Conclusion
The advertisements we see on TV, through social media, and come across in every aspect of life are strictly controlled by the Advertisement Board upon complaint or ex officio. By evaluating the complaints that can be easily filed by every consumer via e-government in accordance with the principles mentioned, above, it can be decided to suspend the advertisement if deemed necessary, and to impose an administrative fine on the undertaking that gives the advertisement.
[1] Advertisement Board, Meeting Decision Dated 13.10.2020 and Numbered 302, File No: 2020/1011
[2] Advertisement Board, Meeting Decision Dated 08.09.2015 and Numbered 240, File No: 2015/1032
[3] Aydoğdu, Murat: ‘Tüketici Hukuku Dersleri’, Adalet Publication, 1st Edition, Ankara, 2015, pg. 84
[4] İnal, Emrehan: ‘Reklam Hukuku ve Aldatıcı Reklamlar’, Beta Publication, İstanbul, 2000, pg. 105, 106
[5] Advertisement Board, Meeting Decision Dated 12.05.2020 and Numbered 297, File No: 2018/7512
[6] Advertisement Board, Meeting Decision Dated 10.11.2020 and Numbered 3030, File No: 2020/1557
[7] Advertisement Board, Meeting Decision Dated 13.01.2015 and Numbered 232, File No: 2014/822
[8] Advertisement Board, Meeting Decision Dated 14.02.2017 and Numbered 257, File No: 2016/665
[9] Advertisement Board, Meeting Decision Dated 10.11.2020 and Numbered 303, File No: 2020/1585
