Hidden Advertising In Turkey

We come across with hidden advertisements on various media in

our daily lives, including but not limited to TV, cinema or

newspapers. The légitima of "hidden advertising"

has become one of the highly debated issues in Turkey.

Amongst the overall discussions and raised arguments, a common

question comes into minds: What makes the hidden advertising like

this popular and actual in the sector? First of all, it might be

said that the advertising prohibition for certain products /persons

or institutions (such as the prohibition of alcohol, cigarette or

drug advertisements or advertising prohibition for lawyers and

doctors etc.) in the legal regulations has led the way for hidden

advertising in time. Besides, there is a fact that the

consumers' confidence in the advertisements has decreased day

by day in the society. It should also be born in mind that most of

the people do not prefer to watch the full length advertorials and

instead make zapping aggressively at the time of advertorial

broadcasts since most of the advertisements are found unnecessary,

unrealistic or boring. In addition to this, people prefer to watch

the news, the entertainment programs, contests and serials rather

than the advertisements. Therefore it would be more logical to

launch the advertisement within the flow of either of the cited

programs as to increase ratings and effectiveness. As a third

reason, the firms making hidden advertisements get rid of the

payments of tax or the official share of the Supreme Council of

Radio and Television as normally required to be paid for launching

advertisements. In this sense, hidden advertising provides

advantages both for the advertisers and the broadcasting

institutions whereby the demand on hidden advertising becomes

inevitable in to the extent possible. Therefore, the borders are

always forced by the advertisement industry as there is a huge

business potential in hidden advertising, despite the existence of

regulations prohibiting hidden advertising.

Hidden advertising is confronted with a strict approach by the

Turkish Advertisement Board, particularly in the last couple of

years. As a very actual and controversial topic, the concept of

hidden advertising should be well defined for its correct

understanding.

One of the fundamental principles of the advertisement law is

that the advertisement – no matter in which media it is

broadcasted- should be explicitly launched as an advertisement by

its nature in order to be of legal acceptance. The regulations with

regard to hidden advertising in Turkey can be laid down as

follows:

Article 16 paragraph 2 of the Consumer Law No. 4077 states that

"Hidden advertising is prohibited".

Article 21/5 of the Law on the Foundation and Broadcast of

Radios and Televisions No. 5785 states that "Hidden

advertising is not allowed in any broadcast".

Article 5, paragraph (d) of the Commercial Advertising

Regulation states that "An advertisement broadcast could

be clear and understandable regardless of its broadcasting

media.

..... Hidden advertisement is prohibited".

Article 14 of the Regulation on the Principles and Procedures

of Radio and Television Broadcast ("RTÜK

Regulation") states that "Unless clearly indicated as

an 'advertisement', the products or services should not be

presented in the programmes with the intention of

advertising".

In the Turkish legislation, the definition of the hidden

advertising only finds place in Article 4 of the RTÜK

Regulation as: "Hidden advertising connotes the

representation in words, in pictures, by logo, corporate name and

registered trade mark and reminding hints with a view to advertise

the products, services, name, trademark or the activities of a

producer of goods or a provider of services in programmes by the

broadcaster in return for payment or for similar

consideration'. As observed from this definition, the

fundamental criterion to be regarded as a hidden advertisement is

the undercover intention of advertising which makes it illegal as a

matter of fact. In addition to this, it might be noted that

"misleading nature of the advertisement" is not

considered as a necessary element of hidden advertising; whereby we

understand that the relevant Turkish legislation is definitely not

apt to lead the way for a form of advertising in which it is not

clearly stated before the audience or the reader to be defined as

the "target groups" that there is an advertisement in the

ordinary flow of the program, article or the like regardless of

assessing whether it is misleading or not.

Coming to the legal sanctions of making hidden advertisement, in

line with Article 16 of the Advertisement Board Regulation, the

Advertisement Board is entitled to punish the ones who are in

breach of Article 16 of the Consumer Law, whereas to stop the

challenged advertisements temporarily as precaution and/or demand

of the amendment of the challenged advertisement and/or...