I. Introduction
The digital revolution of the twenty-first century has fundamentally altered the paradigms through which brands access consumers. The hegemony of traditional mass media in marketing communication has largely given way to social media platforms where users create, share, and interact with content. Platforms like Instagram, YouTube, and TikTok have evolved from being mere socialization tools into an advertising ecosystem that generates billions of liras in economic value. This ecosystem provides brands with unique advantages by offering direct, personalized, and measurable access to target audiences.
However, the dynamic and difficult-to-supervise structure of this new market has also brought significant legal issues to the forefront. Matters such as whether a product recommendation by a social media influencer (“Influencer”) constitutes a mere sharing of personal experience or a covert promotional activity based on a commercial interest; through the processing of which personal data an advertisement shown to a user is targeted; or the consequences under competition law of a brand’s indirect and suggestive posts about a competitor, create legal uncertainties for both consumers and market actors. These uncertainties have prompted legislators and administrative authorities, primarily the Ministry of Trade’s Advertisement Board (“Advertisement Board”), to take normative steps to regulate social media advertising.
II. The Legal Framework Regulating Social Media Advertising
Social media advertising is not regulated by a single piece of legislation but is rather a multidisciplinary field at the intersection of different disciplines such as consumer law, personal data protection law, and electronic commerce law. In this context, the legal regime for social media advertising in Türkiye is analyzed primarily through the lens of the Law on the Protection of the Consumer No. 6502 (“LPPC”), the Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”) published in the Official Gazette dated 10.01.2015 and numbered 29232, and especially the Guideline on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers (“Guideline”) published by the Ministry of Trade.
Critical issues such as the implications of the prohibition of covert advertising on social media, the protection of personal data in the context of targeted advertising activities, and the joint and several liability among the advertiser, advertising agency, and social media influencer arising from an unlawful advertising campaign are examined in-depth in light of the established case law of the Advertisement Board. The ultimate goal is to outline the normative framework of social media advertising to create a compliance strategy based on the principles of transparency and fairness, minimizing legal risks for all stakeholders in this field.
1. The Fundamental Regulatory Role of Consumer Law and the Prohibition of Covert Advertising
The fundamental normative principles that social media advertisements must adhere to are found in legislation aimed at protecting the consumer. Article 61 of the LPPC, which can be considered the “constitutional” text of this field, mandates that commercial advertisements must be conducted in accordance with the principles of fairness, be accurate, and not be deceptive. A post on social media falls under the purview of this law if it pursues a commercial purpose, meaning it aims to promote the sale or lease of a good or service, or to inform or persuade the target audience.
The Regulation, which details the implementation of the LPPC, substantiates one of the most critical rules for social media advertising: the “prohibition of covert advertising.” According to the Regulation, covert advertising is the presentation of a brand or product in a promotional manner within editorial content (news, commentary, articles, etc.) without explicitly stating that it is an advertisement. The primary harm of this practice is that the consumer cannot recognize the content they are exposed to as commercial communication, leading to the manipulation of their economic behavior. For instance, a post by a social media influencer stating, “I discovered a wonderful place on this vacation, you must try it!” without disclosing the commercial relationship, despite their accommodation expenses being covered by a hotel, constitutes a typical violation of covert advertising according to the Advertisement Board’s case law.
1.1. Personal Data Protection Law and Targeted Advertising
The primary mechanism that enhances the effectiveness of social media advertising is the practice of “targeted advertising,” carried out by processing user data. The analysis of users’ demographic information, interests, location data, and online behavior to display personalized ads constitutes a personal data processing activity, which falls directly within the scope of the Personal Data Protection Law No. 6698 (“PDPL”).
According to the PDPL, for personal data to be processed for advertising purposes, one of the legal grounds for processing listed in the Law must exist. The most valid and common legal basis for targeted advertising activities is the “explicit consent” obtained from the data subject. For explicit consent to be considered valid, it must be “related to a specific subject, based on information, and freely given.” In this context, it is a legal requirement for social media platforms and brands to provide a “privacy notice” that informs the user in a transparent and understandable language about the purposes, scope, and legal consequences of the data processing, and only then to obtain explicit consent.
1.2. Electronic Commerce Law and Unsolicited Commercial Communications
The Law on the Regulation of Electronic Commerce No. 6563 (“Law No. 6563”), while primarily regulating commercial e-mails and SMS messages, also extends its scope to direct marketing messages (Direct Messages - DM) sent to users via social media platforms. Law No. 6563 adopts the “opt-in” principle. According to this principle, service providers must, as a rule, obtain the prior consent of the recipient before sending commercial electronic communications. A brand sending continuous messages containing campaigns or discounts to users without obtaining consent constitutes a violation of Law No. 6563.
III. Commercial Advertisements Made Through Social Media Influencers
The inspection activities and administrative sanction decisions of the Advertisement Board in recent years have largely focused on the field of “influencer marketing.” The Guideline, published to eliminate legal uncertainties and ensure uniformity in practice in this area, serves as an instructive resource.
1. The Principle of Transparency and the Labeling Obligation
The core philosophy of the Guideline is to make the commercial relationship between the Influencer and the brand transparent to the consumer, leaving no room for doubt. If any economic benefit is obtained in exchange for a post, such as a fee, free products/services, discounts, or affiliate commissions, this must be stated clearly and comprehensibly. The Guideline has specified the following tags to be used for this purpose:
#advertisement: Used when the brand has full editorial control over the content and there is a direct promotion of a product/service.
#collaboration: Used when the content is produced within the framework of an agreement with the brand, but the Influencer has greater editorial freedom.
It is essential that these tags are placed at the beginning or end of the post’s text, in a manner that is easily visible and distinguishable from other tags, without requiring the consumer to take any additional action to read the rest of the content. The sole use of foreign-language expressions such as “#ad” or “#sponsored” is not considered sufficient.
2. Prominent Issues in Advertisement Board Decisions
The decisions of the Advertisement Board are critical resources for understanding the practical interpretation of the legislation. The Board considers the promotion of a product sent by a brand to an influencer as a “gift” to be a commercial relationship and requires labeling in such posts as well. Similarly, in a post made under a paid collaboration, if the influencer uses phrases like “this is my personal favorite” or “the product I always use” to conceal the commercial relationship and create the perception of a sincere recommendation, it is classified as a deceptive commercial practice.
When an administrative sanction is imposed for an unlawful social media advertisement, the established practice of the Advertisement Board regarding liability is to adopt the principle of joint and several liability. According to this principle, the advertiser (brand), the advertising agency, and the Influencer are jointly and severally liable for the administrative fines arising from the unlawful advertisement. The Advertisement Board can direct the penalty to all three parties.
2.1. Advertisement Board Decisions Regarding Social Media Advertisements
Advertisement Board Decision dated 14.02.2022 and numbered 2022/5701;
“As a result of the examinations, it was determined that in the posts made on various dates from the individual’s Instagram account named ‘……..’, the social media accounts of the mentioned brands were tagged, thereby directing consumers who clicked on the tags to the corporate social media accounts where the aforementioned goods or services are promoted and marketed. However, no ‘advertisement’ or ‘collaboration’ phrase was included in the posts, and thus it was concluded that covert advertising of the mentioned products and brands was conducted by directing consumers to them...”
The Advertisement Board concluded that tagging brands and directing consumers to their corporate accounts without including any #reklam / #işbirliği (#advertisement / #collaboration) tag constituted covert advertising, and that this was a clear violation of the provisions of the Regulation prohibiting deceptive and covert commercial practices, as well as the principles of fairness and transparency in Article 61 of the LPPC. Consequently, an administrative fine of 155,712 TL was imposed on the Influencer under Articles 63 and 77/12 of Law No. 6502, and it was decided to halt the unlawful advertisements.
Advertisement Board Decision dated 08.11.2022 and numbered 2022/4782;
“As a result of the examinations, it was determined that in the said post, while advertising the product named ‘......’, contrary to the ‘@......TÜRKIYE’ tag, the phrase ‘collaboration’ was included in small font, thus the said phrase was not of an easily readable size, and considering the interface and technical features of the medium where the post was located, it was not presented in a manner that could be noticed by consumers at first glance...”
The Advertisement Board ruled that although the term “collaboration” was technically present in the post, it did not meet the requirements of readability and noticeability at first glance. Therefore, it held that this violated both the transparency and clear labeling obligations stipulated in Articles 5 and 10 of the Guideline, as well as the provisions of the Regulation prohibiting deceptive commercial practices and covert advertising. Consequently, it was decided that this presentation style, which prevented the consumer from clearly distinguishing the commercial communication, constituted deceptive advertising contrary to Article 61 of the LPPC, and a sanction to halt the advertisement was imposed on the media owner under Articles 63 and 77/12 of Law No. 6502.
Advertisement Board Decision dated 13.12.2022 and numbered 2022/4273;
“As a result of the examinations, it was determined that in the posts made from the Instagram account named ‘…………’, the social media accounts of the mentioned brands and individuals were tagged, thereby directing consumers who clicked on said tags to the corporate social media accounts where the aforementioned goods or services are promoted and marketed. However, no advertising phrase was included in the posts, thus constituting covert advertising of the said products and brands.
Furthermore, in the posts made in the ‘story’ section, the phrases #reklam #işbirliği were included in small font and white-colored text, thus the said tags were not presented in a manner that was easily readable and visible to consumers at first glance...”
The Advertisement Board deemed the absence of any advertising phrase in the posts and the use of #reklam / #işbirliği tags in story posts in small font and in a manner that reduced visibility as covert advertising of a misleading nature. It concluded that this violated the provisions of the Regulation prohibiting deceptive commercial practices and the principle of transparency in Article 61 of the LPPC. Based on these findings, it was decided to halt the advertisements concerning Aslıhan Doğan Turan under Articles 63 and 77/12 of Law No. 6502.
IV. Conclusion
Social media advertising, while being a dynamic and wide-reaching marketing field offered by the digital economy, harbors significant legal risks that must be managed with care. The primary objective of the legal framework in Türkiye is not to hinder digital marketing, but to ensure that this market operates within the principles of fairness, transparency, and honesty. A digital ecosystem where the consumer is not deceived, the privacy of personal data is respected, and competition is not violated by unfair methods is, in the long run, in the interest of all market actors. Therefore, it is not a choice but a legal obligation for brands, agencies, and Influencers conducting commercial communication activities on social media platforms to approach their campaigns from a legal perspective right from the planning stage.
B. Key Takeaways
(1)Broad Legal Framework and the Commercial Purpose Element: The key factor determining whether a social media post is legally considered an advertisement is not its format, but the commercial purpose behind it. If the post aims to promote the sale of a good or service, it ceases to be personal content and becomes subject to legal regulations.
(2)The Central Role of Consumer Protection Legislation: The legal foundation of social media advertising is formed by the LPPC and related regulations. This legislation aims to prevent consumer deception by mandating that all commercial promotions comply with the principles of fairness and transparency.
(3)Strict Enforcement of the Prohibition of Covert Advertising: Presenting content as a sincere recommendation or personal experience without clearly stating it is an advertisement constitutes covert advertising and is prohibited. Such hidden promotions that manipulate consumer perception are among the most frequently inspected and penalized violations by the Advertisement Board.
(4)Transparency and Labeling Obligation in Influencer Marketing: Influencers are obligated to use tags such as #reklam or #işbirliği (#advertisement / #collaboration) to clearly indicate the commercial nature of their content in posts made in exchange for any financial benefit. It is essential that these tags are easily visible, in Turkish, and understandable; foreign-language tags alone are not considered sufficient.
(5)The Principle of Joint and Several Liability: In penalties arising from an unlawful social media advertisement, liability belongs to all parties, not just the influencer, according to the principle of “joint and several liability.” Under this principle, the Advertisement Board can direct the penalty to the advertising brand, the advertising agency, and the influencer collectively.
(6)The PDPL Dimension and the Explicit Consent Requirement: Using “targeted advertising” by processing users’ personal data is subject to the PDPL. For this activity to be lawful, it is mandatory to obtain “explicit consent” from the user after providing a privacy notice explaining the purpose of the data processing.
(7)Broad Interpretation of Financial Gain: “Gifts” Also Count as Advertising: According to Advertisement Board decisions, the promotion of a product sent by a brand to an influencer as a “gift” is also considered commercial advertising. The absence of a monetary payment does not change its nature as an advertisement, and the post must still be indicated with tags like #reklam. (#advertisement)
(8)Application of Law No. 6563 to Direct Marketing Messages: Direct marketing messages (DMs) sent for commercial purposes via social media fall under the scope of Law No. 6563. According to this law, it is generally mandatory to obtain prior consent from users to send such messages.
(9)The Guiding Nature of Advertisement Board Decisions: The current decisions of the Advertisement Board are guiding resources for understanding how the abstract rules of the legislation are interpreted and applied in practice. Since these decisions serve as case law that clarifies “gray areas” in the industry, they should be regularly monitored to foresee legal risks.
(10)Compliance and Legal Risk Management: To minimize legal risks, social media advertising must be conducted in compliance with the principles of transparency, fairness, PDPL, and consumer protection from the campaign planning stage; in the long run, this approach both increases consumer trust and protects brand reputation.
