Legal Compliance Review of Commercial Advertisements

  1. General Provisions

Announcements made by providers of goods or services through any medium, whether in writing, visually, audibly, or by other means, for the purpose of promoting the sale or lease of goods or services, or informing or persuading the target audience, are referred to as “commercial advertisements.”

Commercial advertisements targeting consumers are regulated under Article 61 of Law No. 6502 on the Protection of the Consumer (“Law No. 6502”), and the Regulation on Commercial Advertising and Unfair Commercial Practices (“Regulation”), issued pursuant to the Law, sets out the rules regarding commercial advertisements and unfair commercial practices.

Essentially, the publication of commercial advertisements that are misleading or deceptive to consumers, that exploit consumers’ lack of experience or knowledge, that endanger the safety of consumers’ life or property, that encourage acts of violence or criminal behavior, that undermine public health, or that exploit patients, the elderly, children, or persons with disabilities is strictly prohibited.

The Advertising Board, established within the Ministry of Trade of the Republic of Türkiye pursuant to Article 63 of the Law, is authorized to determine the principles that must be adhered to by providers of goods or services, advertisers, advertising agencies, media organizations, and all other persons, institutions, and entities involved in advertising and commercial practices; to examine and supervise commercial advertisements; to issue regulations aimed at protecting consumers against unfair commercial practices; and to impose sanctions when necessary. The establishment, duties, and procedures of the specialized commissions of the Advertising Board are set forth in the Regulation on the Advertising Board. Accordingly, the decisions issued by the Advertising Board, which operates under the Directorate General for the Protection of Consumers and Market Surveillance, constitute administrative decisions enforced by the Ministry of Trade of the Republic of Türkiye.

The Advertising Self-Regulation Board (“ASBR”) was established in 1994 by members of Reklamverenler Derneği (Advertisers Association) and Reklamcılar Derneği (Advertising Professionals Association) with the aim of ensuring that advertisements are lawful, ethical, honest, and accurate, within the framework of advertisers’ responsibility towards consumers and society.

The Advertising Board and the ASBR are well-known among advertisers; however, their legal status, structures, and authorities are sometimes confused with one another. In this article, the similarities and differences between the Advertising Board, which is authorized to issue administrative decisions, and the ASBR, established by members of the Advertisers Association and Advertising Professionals Association, will be explained.

  1. The Advertising Board and the Legal Nature of Its Decisions
    1. Structure of the Advertising Board

The Advertising Board is composed of nineteen members representing various professions, non-governmental organizations, and public institutions. The Chairmanship of the Advertising Board is held by the Director General for the Protection of Consumers and Market Surveillance, who is appointed by the Minister of Trade.

The term of office for members of the Advertising Board is three years, and members whose terms have expired may be reappointed or re-elected. In addition, if a member leaves the Board before the completion of their term, a new member shall be appointed within one month, and the newly appointed member shall serve for the remainder of the predecessor’s term.

    1. Operating Principles of the Advertising Board

The administrative supervision of commercial advertisements is conducted by the Advertising Board. The Board does not possess legal personality; therefore, its decisions are enforced by the Ministry of Trade.[1]

The legal compliance review of commercial advertisements conducted by the Advertising Board may be conducted upon complaint, as well as ex officio by the Board.

Pursuant to Article 8, Paragraph 1 of the Regulation on the Advertising Board, applications to the Advertising Board may be submitted in writing or via the e-Government system. If the applicant is a natural person, their full name, Turkish Identification Number, and address must be provided; if the applicant is a legal entity, its trade name and address must be included. Applications that do not include these details concerning the applicant shall not be considered. Competitors may request that their information be kept confidential when submitting complaints against each other; however, such a request may be accepted or enforced at the discretion of the Advertising Board.

In applications concerning commercial advertisements, the key details such as the media in which the advertisement was published, the date of publication, and the subject of the complaint must be provided. In applications regarding unfair commercial practices, relevant information and documentation related to the complaint must be submitted. For complaints concerning advertisements published on the internet, the petition must include samples of the advertisement along with information regarding the website address (URL, etc.) and the date of publication.

    1. Decisions of the Advertising Board

After reviewing commercial advertisements and notices, if the Advertising Board concludes that an advertisement is unlawful, it may impose, separately or in combination, the administrative sanctions specified in Article 77, Paragraph 12 of Law No. 6502, namely: (i) precautionary suspension penalty, (ii) suspension penalty, (iii) correction by the same method penalty, and (iv) administrative fines.


  • Precautionary Suspension: When the Board cannot reach a definitive conclusion regarding the unlawfulness of an advertisement under review, but considers it beneficial to suspend the advertising activity, it shall issue a precautionary suspension decision to temporarily halt the advertisement in question. The duration of a precautionary suspension decision shall not exceed three months.

  • Suspension Penalty: The purpose of the suspension penalty is to eliminate the effects of the unlawful advertisement. In practice, the suspension penalty is typically imposed together with an administrative fine.

  • Correction by the Same Method Penalty: This penalty is imposed to eliminate the negative impact on consumers caused by an advertisement deemed unlawful. Subsequently, the Board may correct the unlawful aspects of the advertisement and decide on its republication[2].

  • Administrative Fine: As a result of its review of an advertisement, the Board may impose an administrative fine either together with a suspension penalty or independently. The amount of the administrative fine varies depending on the media in which the advertisement was published and the audiences reached. The imposed administrative fine must be paid within thirty days.Legal Nature and Judicial Review of the Decisions of the Advertising Board

The decisions of the Advertising Board constitute final and enforceable administrative acts. Decisions issued by the Board concerning advertisers are considered individual administrative acts. Like any administrative act, Advertising Board decisions benefit from the presumption of legality unless they are amended or corrected by the administration or annulled as a result of a judicial decision. The decisions of the Advertising Board must be implemented immediately.

Although the decisions of the Advertising Board constitute administrative acts, pursuant to Law No. 6502, an administrative judicial remedy may be sought against the Board’s decisions within thirty (30) days, which differs from the sixty (60)-day period provided under the Administrative Procedure Law. Filing an annulment action against a decision of the Advertising Board does not suspend the enforcement of that decision.

  1. The Advertising Self-Regulation Board and the Legal Nature of ASBR Decisions
    1. Structure of the Advertising Self-Regulation Board (ASBR)

Pursuant to the Internal Regulations of the Advertising Self-Regulation Board (“Internal Regulations”), the ASBR is composed predominantly of representatives from advertisers, advertising agencies, and media outlets including television, print, outdoor, radio, and internet, totalling thirty members. The term of office for each member is two years, and members may be re-elected.

    1. Functions, Duties, and Legal Nature of ASBR Decisions

According to Article 1 of the Internal Regulations, the ASBR operates on the principle of self-regulation by advertisers and primarily aims to identify any legal non-compliance of advertisements before they are published and reach consumers. In its activities, the ASBR adheres to the International Code of Advertising Practice. By its nature as a self-regulatory body, the ASBR seeks to resolve any alleged legal violations regarding advertisements efficiently and without cost among advertisers, media outlets, and agencies, prior to any formal claim of unlawfulness.

Furthermore, the ASBR may provide guidance upon the request of advertising agencies or advertisers in situations where there is uncertainty regarding the legality of a prepared advertisement.

The ASBR does not possess legal personality and lacks the authority to impose sanctions. Its enforcement capacity relies solely on the commitments made publicly by its members regarding advertisements[3]. Accordingly, the decisions of the ASBR are of an advisory nature and are not legally binding; however, it has been observed that the commitments made by ASBR members to the public are generally respected[4]

The ASBR cannot issue decisions on disputes that have been brought before the courts. Moreover, if it becomes aware that a judicial action has been initiated regarding a dispute under its review, the ASBR is obliged to suspend its examination in accordance with Article 7 of the Internal Regulations.

 

 

    1. Procedure for Applying to the ASBR

Pursuant to Article 8 of the Internal Regulations, applications to the ASBR may be submitted in writing by consumers, consumer or environmental organizations, relevant professional associations, competing advertisers, or advertising agencies.

  1. Conclusion

Within this framework, while the Advertising Board possesses binding authority to issue administrative decisions and impose sanctions, the ASBR issues only advisory decisions and operates through a self-regulatory mechanism. Although both Boards aim to ensure the ethical and legal compliance of commercial advertisements, they significantly differ in terms of their powers and the legal consequences of their decisions.

 

Kind regards,

[1] İnal-Baysal. (n.d.). (p. 80).

[2] İçöz. (n.d.). (p. 152).

[3] Ziylan. (n.d.). Advertising regulations, oversight, institutions, and practices in Türkiye. In International Advertising Law Symposium (p. 5).

[4] İnal. (n.d.). (p. 96).

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