Social media use has grown undeniably throughout the last decade, especially during the Covid-19 pandemic which transformed daily habits and created a certain dependency on online services. One development in particular, the concept of “influencer marketing”,  has thrown up a number of legal challenges -  inducing certain countries to adopt regulations on social media advertising. Recently, in Turkey, the long-awaited Guidelines on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers has entered into force, clarifying the liabilities of influencers and advertisers.

Increasing Social Media Usage and its Impacts in Turkey

According to We Are Social’s #Digital2021 report for Turkey, the number of social media users in Turkey in January 2021 was 60 million, equivalent to 70.8% of the total population. The number of social media users in Turkey increased by 6 million (+11%) between 2020 and 2021. As noted, social media is not only used to create awareness on certain issues or to connect people, but in today’s world, it is also regarded as a new medium for brands and advertisers to reach millions of potential customers. However, although these platforms, including Instragram, Youtube, Twitter and Tiktok, quickly became one of the leading advertisement venues for brands either directly or in cooperation with influencers, specific regulations for social media advertisements were long delayed. This delay has led to an environment where a grey area existed in terms of the rules applicable to social media advertisements and whether these advertisements were fully subject to the traditional media-based advertisement regulations. 

In Turkey where advertisement activities are highly regulated by consumer protection acts as well as regulations on commercial advertising and are closely monitored by the Board of Advertisement (Board) under Turkish Ministry of Commerce, the Guidelines on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers (the Guidelines) was finally issued on 4 May 2021, introducing the delayed legal framework to govern social media advertisements in a manner that binds both brands and influencers. Influencers and brands who were already taking self-imposed measures such as adding “#collaboration” tags to their posts to highlight sponsored content are now subject to a more detailed set of rules specifically designed for social media platforms. Below, we highlight the main obligations arising from the Guidelines and the liability regime imposed by the regulations of the Board, which concerns both advertisers and influencers.

Advertisers Must Inform Influencers about the Guidelines and the Duty to Comply

The Guidelines underline that the advertiser is responsible for informing influencers of the provisions in the Guidelines, the Consumer Protection Law, and the Regulation on Commercial Advertising, must draw attention to the need to comply with these regulations and take the necessary measures to avoid violations. 
In this regard, brands advertising their products through social media influencers must ensure that there are no implicit auditory, written, or visual advertisements since “implicit advertising” is banned under Turkish law. 

The Guidelines regulate expressions such as “advertisement”, “collaboration”, and so forth that must be included in posts that provide the influencer with financial gain from the advertiser and/or benefits such as free or discounted goods or services. Brands advertising their goods or services must ensure that influencers include at least one of the expressions determined in the list in advertisements through media such as videos, photos, messages, podcasts and content that is accessible only for a short period of time, such as Snapchat and Instagram stories. These expressions must be distinguishable and easily read on the post, positioned where they can be noticed at first glance, and consumers should directly understand their commercial purpose. 

It is also important to note that influencers are prohibited from promoting goods and services they have not experienced firsthand in a manner that indicates that they have, making statements about unproven scientific facts, introducing gifts as if they were bought, creating fake IDs collectively to promote goods/services, using effects or filters without clarifying that these effects or filters are being used, and creating the impression that they are regular consumers despite receiving financial gain from the advertiser. 

Influencer Liability Does Not Discharge Advertisers from Liability

As mentioned, it is the primary duty of the advertiser to ensure compliance with these rules. The Guidelines regulate that the advertiser will not be relieved from his/her liability by asserting the liability of influencers. However, if they prove that they acted in accordance with the obligations specified in the Guidelines, it will be accepted that the advertiser has performed in his/her best efforts that should reasonably be expected from him/her to ensure the influencer complied with the rules. Advertisers, advertising agencies and influencers will individually be held liable for their compliance with the obligations set forth within the scope of the Guidelines and the subsequent correction or compensation of the violations of the Guidelines, the Consumer Protection Law, and the Regulation on Commercial Advertising will not exclude them from liability.

We have yet to see the practical implications of the recently introduced Guidelines, which essentially aim to ensure that the key principles of legal advertising, transparency, and integrity apply to social media advertisements, which are promising to become a leading advertisement platform in Turkey as well as across the world. We believe that the introduction of customized advertisement regulations taking into account the particularities of social media as an advertisement venue will benefit not only social media users but also advertisers and influencers by eliminating uncertainty in terms of the rules of the game.

Authors:  Dilber Vanessa Kohen Poyastro ([email protected]), Mina Çobanoğlu ([email protected]) and Ayşe Hergüner Bilgen ([email protected]).  The authors are members of the Istanbul-based law firm Hergüner Bilgen Őzeke.  www.herguner.av.tr