Authors: Hatice Ekici Tağa, Sümeyye Uçar, Bensu Özdemir
Misleading advertisement is a type of advertisement which may or does mislead the consumers. Also, these advertisements can affect the consumers’ economic actions, and they harm or have the potential to harm their rivals. Thus, the first collocutor of these advertisements is the consumers, then the rival brands and companies. In this context, there are regulations in order to control deceptive and misleading practices and protect the consumers and the market environment. In particular, the Turkish Commercial Code (“TCC”), Turkish Consumer Protection Law (“TCPL”), and the Implementing Regulation on Commercial Advertisement and Unfair Commercial Practices (“Regulation”) include the provisions regarding misleading practices.
TCC states that acts or commercial practices between competitors, providers, and customers that are misleading or violating the rules of ethics or the bona fide principles are unfair and contrary to the law under the title “Unfair Competition”. Also, advertisements and selling methods which violate the good faith principles are accepted as an unfair competition practice.
Moreover, TCPL regulates the topic of “Commercial Advertisement and Unfair Commercial Practices” specifically, and the commercial advertisement which misleads the consumer has been prohibited pursuant to Article 61 titled “Commercial Advertisement”. Additionally, the Regulation aims to specify the implementing procedures and principles to be followed and to set principles for inspection and to protect consumers against the unfair commercial practice. In this respect, it is stated that advertisements have to be true and fair.
In the light of foregoing, if an advertisement includes following elements it would be considered as misleading;
· The advertisement must be false or deceptive.
· The advertisement must or have the possibility to deceive the consumers.
· The deceptive expression must affect or must have the potentiality to affect the consumer’s decision. In short, the deceptiveness must be significant.
In that context, the misleading in the advertisement may be done both by creating unreal contents and actions, or by hiding information and complicating it. Also, the advertisement does not have to mislead the consumer. The advertisement's suitability or possibility to mislead is sufficient to be deemed as a misleading commercial practice.
Advertisements that reveal only the good aspects of goods or services and hide the bad ones, in other words, distort the truth, are also considered as misleading advertisement. The expressions and images supporting the promise in the same advertisement is another important issue in terms of not being misleading. When evaluating whether the advertisement is misleading or not, the impression left by the whole advertisement should be taken as a ground. If the impression left is misleading, the advertisement is misleading even the expressions or claims are objectively accurate.
Deceptiveness of the advertisement is also determined based on its impact on consumers. When determining whether the advertisement is deceptive, its "ability to deceive" consumers needs to be considered. On the other hand, the consumer mass which is the basis of evaluation is determined by the national courts. In Turkey, these criteria are defined as “average consumer” by the Supreme Court and the doctrine. In addition, the Regulation includes the expression “perception level of average advertisement audience” and the average advertisement audience is defined as a natural or legal person who pursues non-commercial and non-professional purposes and who is reasonably well informed in every level of practices targeting consumers. The average consumer’s level of perception and information is not higher than other members of society. These people do not deeply examine the advertisements, but they can understand the information included in the product.
In addition, the knowledge and experience of the consumer audience that the advertisements specifically address is important. Considering the average consumer in the audience they address; it will be determined whether the deceptive and false information in the advertisements has the "ability to deceive". In addition to determining the current statement’s deceptiveness, the question of how effective this misleading advertising is on the consumer's decision, should be answered.
Determining whether advertisement is misleading or not, is very important both for the protection of consumers and for the prevention of unfair competition. With these regulations, the legality of the advertisements is checked, and sanctions are imposed for illegal advertisements. If the results of these audits prove that the advertisement is misleading, the sanctions to be applied are “halting the advertisement, compensation of the damage, imposing administrative fines and making corrective advertisements.” In this context, misleading advertisements should not be made in order not to be exposed to these sanctions.