Amendment Regulating the Authority of the Advertisement Board to Take Decisions on "Removal of Content and/or Denying Access" is in Effect

The Law on the Amending the Turkish Commercial Code and Certain Laws (Amendment Law) has been published in the Official Gazette dated 29 May 2024, which includes the powers granted to the Advertising Board for advertisements contrary to the legislation in the Law on the Protection of Consumers (TKHK). Before the relevant regulations, we find it useful to briefly mention the decision of the Constitutional Court (AYM) numbered 2022/70 E., 2023/152 K. (Annulment Decision) published in the Official Gazette on 27 October 2023 (only available in Turkish).

With the Annulment Decision; The article in the TKHK regulating the authority of the Advertising Board to "deny access to the content, and in cases where access to the content cannot be denied, to issue an access-denying decision for the entire website" in terms of advertisements that contrary to the legislation without any notification was annulled by the AYM because it out of proportion restricted the freedom of expression and the freedom to work and establish an enterprise. In this context, the AYM considered the lack of any notification or warning mechanism before the access-denying decisions to the entire website as disproportionate. Therefore, this authorization of the Advertising Board was annulled. The effective date of the relevant decision will be 27 July 2024, nine months after the publication of the decision.  This period was interpreted as an opportunity to readjustment the annulled provisions to avoid a legal gap.

In this context, the expected changes were made with the Amendment Law.

Accordingly, following the AYM's Annulment Decision, the Amendment Law set out a new structure. With the new regulation, the Advertising Board;

• — will notify the relevant website to remove the contrary content before issuing an access-denying decision.
• — if the content is not removed within 24 hours of the notification, an access-denying decision will be issued.
• — it is also possible to issue an access-denying order without notification, exceptionally, if there is no possibility of notification to the addressee.

In addition, as a rule, these access-denying decisions can only be issued "limited to the content that is in contrary". The Advertising Board can only issue an access-denying decision for the entire website in cases where access to the contrary content cannot be technically blocked or contravention cannot be eliminated by denying access to the content.

These regulations brought to the TKHK by the Amendment Law entered into force on 29 May 2024, the date of publication of the Amendment Law.

The Amendment Law is available here (only available in Turkish).