Regulation on Social Media Influencers (Influencer) What does the #Collaboration We Have Seen Frequently in Social Media Recently Mean?
In a world that is becoming more and more globalised every day, consumption has become an order that every society carries out with common traditions. The need for consumption, which is inherent in human nature, has grown with the global world and has led to new searches for all individuals and organisations, large or small, in many sectors and service areas. A brand new field of advertising has emerged for individuals and organisations from every sector working to gain a place in the market or to increase their share in the pie: influencer marketing. In this context, the power of social media on society has increased gradually; economic, social and political life has become directable.
Television advertising, which has taken the throne by replacing advertising activities in printed publications, is now in danger of losing its place to social media advertising. The products that were marketed with the suggestions of actors and popular series characters on television in the early 2000s have started to be perceived as sincerity by potential users due to the fact that actors can acquire and experience a product in their social media profiles with their own personalities and convey their own experiences to consumers. Seeing this advantage, individuals and organisations have shifted the entire budget allocated to advertising activities to influencer marketing over time. Today, the latest large-scale updates of the social media giants Facebook and Instagram platforms are related to the shops they have created within their own structure. With the COVID-19 Pandemic, all sectors that have difficulty in providing physical services have strengthened this area by entering the online world, creating an undeniable phenomenon and indirectly a threat.
Regulatory Imperative
In our country and all over the world, the implicit nature of the advertisements made on social media with influencer marketing method and the difficulty of distinguishing them from the real personal statements of the individuals have resulted in the fact that this medium cannot be subjected to the desired level of control and this situation has led to the violation of consumer rights and unfair competition between rival companies in Turkey as in the whole world. All these reasons have made it inevitable that this market must be specially regulated. As a precedent from the world, in the UK, a number of regulations were made in 2019 on the legal status of social media influencers and advertisers and a Code was published. In Turkey, the ‘Guideline on Commercial Advertisements and Unfair Commercial Practices by Social Media Influencers’ (‘Guideline’), which was prepared on 5 May 2021 based on the Law No. 6502 on the Protection of Consumers (‘CPL’), was published and entered into force by the Ministry of Commerce.
Who is a Social Media Influencer?
Pursuant to the Guideline, a social media influencer is defined as ‘a person who engages in marketing communication through his/her social media account in order to ensure the sale or rental of a good or service belonging to him/herself or the advertiser, to inform or persuade those who make up the target audience’. In this context, it can be said that it will be quite difficult to draw reference ranges in determining the social media influencer in practice, although the important thing in this context is the purpose for which the post is made rather than the number of followers. Although the criteria to be considered in this determination can be listed as being a public figure, having a certain identity, the number of followers as the most important element or being able to use the privileges that social media platforms grant to some users (e.g. the ability of users with 10 thousand followers on the Instagram platform to make scrolling posts, etc.), it will be difficult to say that these references can be determined according to relatively concrete criteria when evaluated together with the fact that there are millions of users on hundreds of platforms in today’s world.
Basic Approach
The Guideline aims to guide ‘advertisers, advertising agencies, media organisations and all persons, institutions and organisations related to advertising’ on commercial advertising and commercial practices. The Guideline regulates details such as on-site and video sharing, podcasts, visual sharing, and stories, reels, snaps that appear for a short time and then disappear, as well as other dynamics of social media platforms, which are incomplete and question marks have not yet been fully resolved. The main purpose of the Guideline is to clearly regulate that the principle of implicit advertising prohibition, which dominates the Advertising Law, is also valid in social media, and to regulate the procedures and principles for the implementation of the implicit advertising prohibition.
Sharing Principles
According to the Guidelines, social media influencers
cannot share a good or service they have not experienced as if they have experienced it,
He/she cannot pretend that he/she has purchased a good or service that has been gifted to him/her by the advertiser,
Cannot make a health declaration regarding a good or service in violation of the relevant legislation,
In cases where the advertiser receives a product or service from the advertiser in return for a financial gain and / or free of charge or at a discount, it is regulated that the advertisement should explain the situation to the consumer by putting some phrases listed in the guideline.
According to the Guideline, these phrases must be specific to various social media platforms, such as #Advertisement, #Advertising/Promotion, #Sponsor, #Collaboration, #Partnership, and must explain that the shared video, podcast or products include [advertiser] advertisements and paid co-operation promotional activities. Social media influencers are obliged to post at least one of these phrases on the relevant channels. The Guideline also prohibits social media influencers from ‘referring to and promoting goods or services provided by doctors, dentists, veterinarians, pharmacists and health institutions’. Although this general prohibition provision is regulated very broadly, its scope is left blurred. Namely
When it comes to products sold in pharmacies, the first product that comes to mind is undoubtedly food supplements and vitamins. With the COVID-19 Pandemic, the demand for such products by those who want to increase the immune system has increased very rapidly, the need has not been met and fake vitamins have started to circulate on various websites. When such incidents that put public health at risk were supported by the advertisements of social media influencers, the damage was inevitable. In fact, in the recent past in our country, an investigation was initiated against social media influencers who promoted unlicensed vitamins with the discourse ‘sold in pharmacies’. On the other hand, cosmetic products may be included in the products provided by ‘pharmacists’ within the scope of the article. Especially skin care products are sold intensively in pharmacies, and it can be inferred that products such as sunscreen and moisturiser may be covered by the prohibition only in terms of ‘place of acquisition’, and that the product portfolio other than this is out of scope.
There will also be significant changes to the promotion and advertising of services under this part of the Guidelines. Social media influencers frequently provide advice and guidance in the field of health such as dietician, dental aesthetics, non-surgical or surgical aesthetic touches, ‘roaccutane’ treatment for skin problems. It is a well-known marketing technique in the sector that social media influencers are approached with an advertisement offer in return for a certain discount or free service, especially in terms of aesthetic operations. Therefore, the relevant regulations have been quite necessary and appropriate in terms of such practices.
Audit and Surveillance
The Guidelines regulate the responsibilities of social media influencers and advertisers separately. One of the most important points is the advertiser’s obligation to inform the social media influencer about the provisions of the Guidelines. In this context, both the advertiser and the social media influencers will not be able to claim that they were not informed about the Guidelines. In practice, it is known that this obligation to inform is communicated by some advertisers to the social media influencers they work with and fulfilled in the form of a summary of the points of the Guidelines that are in contact with them. At this point, one of the most important issues to be discussed should be how to identify the companies that do not fulfil this obligation and what sanctions will be applied.
As additional elements at the point of supervision and surveillance, concrete explanations such as checking how compliant social media influencers are when complying with the aforementioned obligations, the existence of an authority that can be applied by consumers and where appropriate, the existence of an authority that can be reported when necessary, the use of filters, monitoring of openness and honesty in practice, such as the addition of labels that are too small to be read, can be counted, but it is not possible to monitor the elements listed within the scope of the Guideline content. For example, ‘creating the perception that a product that has not yet been used has been experienced’ is quite abstract and difficult to prove, and it is not clarified how it will be controlled and audited.
What will be the Legal Position of Intermediary -Consultancy Agency- Institutions?
The Guideline stipulates that advertisers must explain and inform social media influencers of all their legal obligations and that the burden of proof will be on advertisers, but there is no regulation regarding the agencies that social media influencers frequently work with. Namely; with the development of social media advertising, a new line of business has emerged for those involved in this medium. Therefore, the number of intermediary organisations that will act as a bridge between those with high interaction and advertisers is increasing day by day. These companies, which we can call Consultancy Agencies, include more than one social media influencer, and advertisers access the aforementioned people through these agencies and advertise their products.
Unlike advertising agencies, Consultancy Agencies provide various services to social media influencers; they provide support in technical, administrative and legal matters and continue their existence by receiving commissions on the advertisements made. However, these consultancy agencies are not mentioned in the Guidelines. In Article 1 of the Guideline, the persons concerned are listed as ‘advertisers, advertising agencies, media organisations and all persons, institutions and organisations related to advertising’ and in Article 12, ‘advertisers, advertising agencies and each of the social media influencers as media organisations’; it is thought that the mentioned agencies will not be included in this scope since they are not a factor related to ‘advertising’ activity.
As a practical working principle, social media influencers can receive their payments by issuing a collective invoice to the Consultancy Agency for all advertisements made at the end of the month, while the Consultancy Agency invoices the advertisers separately within the scope of the service provided. For most social media influencers who do not/can not have a good command of their legal and administrative rights, such practices make life easier and are becoming a very common practice. Although this working concept is widespread and established in the market, the Guidelines do not mention the stakeholders of this concept. The first question that comes to mind is what will be the legal obligations of the consultancy agencies that act as a bridge between social media influencers and advertisers in the event of a violation, how it will be possible to subject them to criminal sanctions and what will be their position within the scope of the Advertising Law that the Guideline touches upon. In this respect, it would not be wrong to comment that there is a gap in the Guideline on the issue, which is tried to be explained by giving an example below, and that it should be urgently regulated.
For example, for the advertisement of product X, the advertiser reaches out to the Consultancy Agency, the advertiser makes a notification within the scope of the disclosure obligation and warns to comply with the relevant legislation; when the Consultancy Agency does not mention this notification at all while transferring the work to social media influencers and the conditions in the Guideline are not complied with in the advertisement of product X, on what basis will the Consultancy Agency be held liable in proportion to its fault?
Conclusion
Thanks to the ease of access of social media, its impact on people and its contribution to the advertising sector has reached incredible dimensions. The legal regulations related to these areas, which have become a worldwide need and whose impact power has finally been recognised in Turkey, have started to enter our literature slowly but with a hasty attitude. As a natural consequence of this, the texts that have been produced have been organised from a point of view that is not aware of the sector, and their deficiencies have perhaps had a larger volume than the areas they protect. In this context; first of all, the necessity of the existence of an independent organisation that will carry out audit activities takes the lead in the importance ranking. Since the number of both social media channels and social media influencers has reached astronomical proportions, it is highly likely that any existing administrative authority will not be able to handle this workload. Therefore, the first innovation that should be introduced in a short period of time is the establishment of a supervisory board.
Apart from this, while the activities of the Consultancy Agency, which is the reality of the sector, are very essential, the fact that they are not included in the Guideline will lead to the further destruction of small fish and the reckless feeding of big fish, and will lead to great victimisation. While expanding the regulations in this section, a clearer regulation of sanctions and penalties will be beneficial for all factors in the equation and will keep the principle of legality alive in practice.
Lastly, since it is sensitive, specifying the term ‘products provided by health institutions and especially pharmacies’ will ensure that cosmetic products are excluded from the scope and the value that the law seeks to protect can be seen more clearly.
