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May 7, 2020

Surreptitious Advertising Under Turkish Law

Media & Entertainment
Reading Time: 5 minutes

I.     INTRODUCTION

Pursuant to Turkish Law, one of the basic principles of advertising law is that it should be clearly understood that an advertisement is an “advertisement”, regardless of the where it is published as stated in Article 6 of the Commercial Advertising and Unfair Commercial Practices Regulation (“Regulation“) in accordance with Turkish Law. In cases where an advertisement is not clearly understood as an advertisement, there is a surreptitious advertisement situation, and it is prohibited to make surreptitious advertisement since it causes the consumer to mislead.

II.   PROHIBITION ON SURREPTITIOUS ADVERTISING

In accordance with both Law No. 6502 on Consumer Protection (“Law“) and Regulation; it is considered as a surreptitious advertisement that commercial names or business names are included in the articles, news, broadcasts and programs for the purpose of advertising with the names, brands, logos or other distinctive forms or expressions related to the goods or services. It is forbidden to make surreptitious advertisement in audio, written and visual in all kinds of communication tools.

The following criteria are based on the evaluation of articles, news, broadcasts and programs in terms of surreptitious advertising, including the names, brands, logos or other distinctive forms or expressions related to goods or services, and trade names or business names, and information and images related to the institution and person representing them:

  • (i) Being harmonious, understated and proportionate of the name, brand, logo or other distinctive forms or expressions, trade name or business names, and information and images relating to the institution and person representing them with the format of the articles, news, broadcasts or programs in which they are included in terms of subject, content, presentation, positioning and duration.
  • (ii) Meeting the needs of consumers for enlightenment and information by the articles, news, broadcasting or programs published within the framework of the right to inform, disseminate and receive information.
  • (iii) Not encouraging the lease or purchase of goods or services by making special introductory references to goods or services, so as to consciously direct consumer preferences.

In this regard, the Council of State has regulated that “Failure to advertise the broadcast with clear and comprehensible visual and audio elements in the program flow will result in an unprepared perception of the advertisement by the audience focused on the program, as well as the violation of the detailed regulations for advertisements.”[1].

III.  THE TYPES OF THE SURREPTITIOUS ADVERTISING IN PRACTICE

The surreptitious advertisements may appear in different ways in practice, and yet surreptitious advertisements appear under the most commonly used methods news view, by placing products or placing any product, brand or trade name in the program or by providing information about the nature of the program.

The most common area of surreptitious advertising is news channels. Editing prohibited advertisements as news is more common than using it in other types of programs.  For example, when talking about the damages of cigarettes, there are items belonging to a cigarette brand on the screen or especially a hotel is featured in a news about the winter holidays, a surreptitious advertising is in question.

In this context, the Board of Advertising make decision on whether there is a surreptitious advertisement in a news content based on the criteria “  to give praise and demand-generating expressions about the product in a way that will consciously direct consumer preferences by going beyond the purpose of enlightening, informing and informing consumers[2].

Product placement as a surreptitious advertising method is regulated by legislation. In the Law Regarding the Establishment and Broadcasting Services of Radio and Television Numbered. 6112, the product placement is defined as “any commercial communication of a product, service or trademark in the program by including or referring to it in the program for a fee or similar provision”.

Instead of clarity in the surreptitious advertisements made by placing the product, a way to show the brand of a product in a subject or program that has nothing to do with the product, is chosen. Examples such as seeing a certain brand of beverage brand in a restaurant in a TV series, wearing a certain brand of clothing, and having a poster of a movie in the vision on the wall are considered as surreptitious advertising. In this case, it may be the intention of the advertisers to avoid the cost of advertising or, on the contrary, a placing product priced illegally[3].

As far as can be seen from the current practices of the Advertising Board, the criteria such as the ones listed below are taken into consideration in the evaluation of the covered advertising application:

  • highlighting a particular product, brand or trade name unnecessarily and inappropriately in accordance with the nature of the program
  • being too long of the display time incompatible with the rule of proportionality, or
  • making close-up with a clear orientation to a particular product, brand or trade name.

One of the common techniques in surreptitious advertising is to direct a particular company, brand or product by close-up. If a product is not used in its natural environments in articles, news, broadcasts and programs, it can be mentioned that there is a surreptitious advertisement if the products are brought to the fore by close-up.

Advertising on social media – especially surreptitious advertising – has become a very common situation due to the recent development of social media. At this point, even if it is controversial whether the posts shared by a social network user regarding a product or service can be evaluated as surreptitious advertising, the Advertisement Board conducts audits especially for products that are banned from advertising. For example, due to the prohibition of the sale, marketing or advertisement of a product in violation of the provisions of the legislation within the scope of the Regulation on Health Declarations of the Health Declaration and the Products Offered for Sale, advertising in the form of evaluations due to the use of the health product in question on social media is deemed surreptitious advertising [4]. However, it should be noted, that any person using a product without subject to an advertisement prohibition by sharing their evaluations on social media does not constitute surreptitious advertising in all cases. For the reason of that, the quantity of the addressed group is also important for the sharing in question to be an advertisement.

In the light of all these matters, for individuals and institutions that process the surreptitious advertising prohibition, a suspension or correction or administrative penalty for advertising agencies and media organizations, and a suspension of preventive measures up to three months, if necessary, in accordance with Articles 63 and 77 of the Law. The Advertising Board can give these penalties together or separately, depending on the nature of the violation. The rates of administrative fines vary when the contradiction occurs at the local level or through the television or radio channel broadcasting across the country.

IV.      CONCLUSION

Surreptitious advertisement practice is forbidden under the Turkish Law and, is frequently appeared through news channels, serials, movies and social media platforms. Although the Advertisement Board performs very strict inspections and imposes sanctions within the scope of the surreptitious advertising prohibition, surreptitious advertising has been observed more frequently, especially due to the increasing use of social media in recent years.

 

[1] The decision of the 13th Chamber of the Council of State, E.2005 / 7449, K.2005 / 4856 and dated 4.10.2005.

[2] Advertisement Board Decision with the file number 2019/9934.

[3]Advertisement Board Decision with the file number  2017/5117.

[4] Advertisement Board Decision with the file number 2019/655.

Media and Entertainment Law
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