Data Protection in Advertisements

The Advertisement Board (“Board”), at the meeting dated 12 March 2024 and numbered 343, examined websites that require membership as a pre-condition for making purchase at the website. As part of this examination, the Board assessed whether any additional personal data, beyond the mandatory and necessary information for the purchase process, was requested from consumers, whether the conditions for unsubscribing were made more difficult compared to the methods specified for subscribing, whether the consumer's consent for cookies and commercial communication was left to their preference along with the membership agreement, and whether personal data was shared with third parties for targeted advertising or marketing purposes.[1]

The Board considered it an unfair commercial practice to compel consumers to consent to targeted advertising and commercial communication, to request personal data that is not necessary for the purchase process, to present the option to continue without creating a membership in smaller font and color, and to make it more difficult to unsubscribe. Some of the key decisions of the Board are as follows:

• During the examination of a leading e-commerce and online retail platform in Turkey and worldwide, it was found that consumers were not provided with the option to proceed for purchase without creating an account. Throughout the account creating, consumers were forced to accept targeted advertising, and no opt out option was provided. The website design and membership process were found to adversely affect consumers' decision-making and freedom of choice. The option to leave no trace after making a purchase was not offered, and consumers were directed to modify their account settings to avoid targeted advertising, a process which was more complicated than simply accepting the membership, which did not eliminate the violation.
• In the examination of the website of a well-known footwear company, it was found that consumers were not provided with the option to continue without creating an account. While creating accounts, consumers were required to provide gender information, which was not necessary for the delivery of the products. Consumers were forced to consent to the use of their personal data for marketing purposes, and their explicit consent regarding whether their personal data would be used for marketing was not obtained. The design of the website and commercial practices were found to negatively affect consumers' decision-making and freedom of choice. Consumers were not provided with the option to leave no trace after purchasing the product, and while the option to easily register was offered, no information was provided regarding how to unsubscribe, thereby preventing consumers from severing their relationship with the website and the company.
• In the examination of the website of a travel agency, it was found that when consumers proceed to the payment for purchasing a ticket, the payment page displayed a pre-selected checkbox for loyalty program membership, labeled “I want to become a member” without presenting it for consumer consent. This practice was found to pressure consumers into joining the membership by taking advantage of their lack of knowledge, experience, and attention, without their consent. The “Terms of Use” checkbox, which consumers were required to check during the ticket purchase, did not provide the link to Terms of Use. It was also found that unsubscribing was not as easy as subscribing, consumers were forced to accept targeted advertising when joining the membership, and no option was provided to decline targeted advertising. The design of the website and its commercial practices were found to negatively affect consumers' decision-making and freedom of choice. Consumers were not offered the option to leave no trace after purchasing the product.

The Board's decisions are based on the prohibition of deceptive commercial practices which are defined as “using methods such as directing interface designs, options, or statements related to a product or service in online environments that adversely affect consumers' decision-making or will to choose, or aim to lead to changes in their decision in favor of the seller or provider under normal circumstances” by the Regulation on Commercial Advertisement and Unfair Commercial Practices.

The violation of personal data privacy through advertising practices, which impacts consumers' purchasing behavior, has naturally aligned personal data protection law with consumer protection law. In order to raise awareness across society regarding targeted advertising and deceptive commercial practices, monitor international regulations and practices related to digital advertisements and the use of personal data, and develop joint policies against existing and potential violations, a Cooperation Protocol was signed on August 28, 2024, between the Advertisement Board and the Personal Data Protection Authority. This protocol aims to increase consumers' awareness of digital advertisements and commercial practices and strengthen their control over personal data.[2]

In digital environments, the implementation of targeted advertising practices often necessitates the use of extensive and varied user data. As a result, companies may resort to deceptive commercial practices and misleading website designs in order to collect such data from consumers. As seen in the aforementioned decisions, the commercial practices in question lie at the intersection of personal data protection law and consumer protection law. With this collaboration, it is anticipated that the Advertisement Board and the Personal Data Protection Authority will continue their close monitoring of the use of personal data in the context of targeted advertising and deceptive commercial practices. It is anticipated that administrative sanctions may increase in this area, and new policies may also be developed.

[1] https://ticaret.gov.tr/haberler/reklam-kurulundan-tuketiciler-icin-2-karar-cikti

[2] https://www.kvkk.gov.tr/Icerik/7990/Kisisel-Verileri-Koruma-Kurumu-ile-Ticaret-Bakanligi-Arasinda-Is-Birligi-Protokolu-Imzalandi

Authors:

• https://gun.av.tr/people/baran-guney
• https://gun.av.tr/people/zeynep-berfin-ekinci