"Is He/She Recommending This Because He/She Really Likes It?" Legal Responsibility in Influencer Advertising

Imagine opening a social media app on your phone and seeing your favorite content creator sharing their morning routine. First, they show off their coffee machine, then they talk about the cream they use on their skin, and finally, they say, "My life has changed since I started using this product," and give their followers a discount code.

Is this post genuinely personal advice, or is it a paid advertisement?

Today, the line between these two situations is not always easily understood. Social media influencers, thanks to the trust relationships they build with their followers, have a significant impact on consumers' purchasing decisions. People often trust the advice of a social media user they have followed for a long time more than the classic advertisements they see on television.

However, presenting a product as a personal experience without disclosing that it is an advertisement is not only an ethical issue. Such postings may constitute covert advertising, disguised advertising, or misleading commercial practices under consumer law. Therefore, influencer advertising has become a significant issue not only in the digital marketing world but also in the legal world.

How do influencer advertisements manifest in our daily lives?

Influencer advertising doesn't always appear as professionally produced commercials. Instead, it's often presented as a natural part of everyday life.

An influencer;

• You can show the mug you use when you drink your morning coffee
• You can tag a brand of leggings while exercising,
• He might praise the hotel where he stayed on vacation,
• She can recommend a product she uses for her child
• You can share the meals of a restaurant,
• You can describe the effects of the skincare product
• They can give their followers a special discount code.

Some of these posts may genuinely be the influencer's own choice. However, if the influencer received the product for free, was paid for the post, received a discount, or was given another benefit, the post may become commercial in nature.

A social media post doesn't necessarily require cash payment to be considered advertising. Free product delivery, hotel accommodation, complimentary meals, travel expenses, or commission on sales can also be indicative of an advertising relationship.

Therefore, the defense "I wasn't paid, I only received the product" doesn't always mean the post wasn't an advertisement.

The problem isn't advertising, it's hiding advertising

The legal system does not prohibit influencers from advertising. The important thing is whether the consumer can recognize that the content they are seeing is an advertisement.

A consumer should know whether someone they follow is recommending a product because they genuinely like it or because of a deal they have with the brand. This information can directly influence the consumer's assessment of the product and their purchasing decision.

For example, let's say an influencer uses the following phrase:

“I’ve been using this cream for about a month now. It’s been incredibly good for my skin. I would definitely recommend it to everyone.”

If the influencer purchased the product with their own money and has no commercial relationship with the brand, the post may be considered a personal opinion. However, if the product was sent to them by the brand or if they were paid for the post, this commercial relationship must be clearly stated.

Otherwise, consumers might perceive a narrative with advertising purposes as an independent and genuine user experience. This would lead to discussions about banning covert advertising.

The word "Advertisement" must be visible and understandable

In sponsored content, simply providing a description is not enough. The description needs to be shared in a way that consumers can easily see, read, and understand.

A single “#collaboration” hidden among dozens of hashtags at the bottom of a post may not always be sufficient. Similarly, descriptions written in illegible font or advertisements displayed only in the final seconds of a video can also create legal risks.

Advertising content may clearly and explicitly use phrases such as the following:

"Advert"

"Partnership"

"Sponsored Content"

"Paid Partnership"

"This product was shipped free of charge by the brand."

"This post has been prepared as part of a commercial collaboration."

The important thing is that the wording used clearly indicates the commercial nature of the post.

Consumers should be able to understand that the post is an advertisement the moment they see it. They shouldn't be forced to read further, click on another link, or wait until the end of the video.

How should advertising descriptions be added to story posts?

Stories shared on Instagram and similar platforms are short-lived and quickly consumed content. Users watch most stories for only a few seconds. Therefore, it is even more important for the ad description to be visible.

For example, if an influencer is staying at a hotel for free and shares a story promoting the hotel, simply writing "collaboration" in very small letters in an inconspicuous corner of the screen might not be enough.

Advertisement description;

• It shouldn't be the same color as the background
• It should be written in a size that is easy to read
• You should stay on screen for a sufficient amount of time
• It shouldn't get lost among brand labels or other visuals,
• It must be clearly displayed in each advertisement.

In a promotional series consisting of multiple stories, adding an advertisement label only to the first story can also be risky. This is because users may see the content at different times or only certain parts of it.

Can an influencer evade responsibility by saying, "I was just sharing my experience"?

It is permissible for a person to share their own experience. However, if this experience is shared within the context of a commercial relationship, it does not lose its advertising value.

The fact that an influencer has actually used and liked the product does not absolve them of the obligation to include a sponsored content description. Similarly, the fact that the brand did not directly prepare the post text does not negate the influencer's responsibility.

For example, a brand might simply send the influencer a product and say, "You can share it if you like it." However, the fact that the product is sent free of charge and that sharing is expected by the brand can be considered when evaluating the commercial nature of the content.

The circumstances of each case are examined individually. The purpose of product delivery, correspondence between the parties, benefits provided to the influencer, discount codes used, sales commission, and the manner of sharing can all be important in determining an advertising relationship.

Discount codes and sales links can serve as advertising indicators

One method frequently used in influencer posts is offering followers exclusive discount codes or sales links.

"You can get a 20% discount with the code FERHAT20."

"You can purchase the product via the link in my profile."

"You can take advantage of the campaign by clicking the link."

Such statements can strongly suggest that the content is for commercial purposes. This is especially important if the influencer receives a commission on every sale; this relationship needs to be disclosed to the consumer.

Followers should know that influencers not only recommend products but can also earn money from sales.

The risks are greater with health and weight loss products

One of the riskiest areas for influencer advertising is health, beauty, weight loss, and dietary supplement products.

The following types of claims are frequently encountered on social media:

"Thanks to this tea, I lost five kilos in a week."

"This cream completely eliminates acne."

"This supplement definitely strengthens the immune system."

"This product is good for diabetes."

"With this method, you can receive treatment without surgery."

Such statements may be considered misleading advertising if they lack scientific evidence or exceed the permitted limits of product promotion. Claims that a product has therapeutic, disease-preventing, or definitive cure-giving properties can have serious consequences, not only under consumer law but also under health law.

An influencer stating "I am not a doctor" is not always sufficient. If the overall content of the post creates the perception among consumers that the product will solve their health problem, then liability may arise.

Particular caution should be exercised when sharing information that could have an impact on children, individuals with chronic illnesses, pregnant women, or consumers seeking rapid weight loss.

Can using filters to promote cosmetic products be misleading?

An influencer using image filters while promoting a skincare product could also lead to legal disputes.

For example, if an influencer claims a foundation makes skin look flawless while simultaneously using a digital filter to eliminate skin imperfections, consumers may be misled about the product's true effect.

Similarly, using different lighting, makeup, angles, or digital editing in “before and after” photos can also make a product's performance appear different than it actually is.

Advertisements must also present accurate and truthful visuals regarding the product's effectiveness. Not only the words used, but also the photographs, videos, filters, editing, and overall style of presentation can be considered in the assessment of misleadingness.

You don't need millions of followers to become an influencer

In terms of legal responsibility, it's not just celebrity accounts with millions of followers that are considered.

Micro-influencers, who have a smaller but influential following on a specific topic, are also subject to advertising regulations. In fact, some brands specifically work with small and medium-sized accounts because they believe they build stronger trust relationships with their followers.

Whether an account has 5,000, 50,000, or 5 million followers doesn't change the nature of the advertisement. What matters is whether the post has a commercial purpose and whether it has the potential to influence consumer purchasing behavior.

Is the responsibility solely with the influencer?

In influencer advertising, responsibility doesn't lie solely with the person who shared the content. The advertising brand, advertising agency, intermediary company, and other individuals involved in the creation of the advertisement may also be held responsible, depending on the specific circumstances of the case.

A brand instructing an influencer to "avoid stating that it's an advertisement; make it appear as natural advice" clearly carries a legal risk. The brand's liability becomes even more pronounced if they have prepared the text of the post, specified the wording to be used, or presented misleading health claims to the influencer.

However, influencers cannot share every piece of content from a brand without questioning it. They must assess the legality of the content, avoid false statements, and disclose any sponsored relationship.

Statements like "The brand sent the text" or "The agency asked me to share it this way" do not absolve the influencer of responsibility in all cases.

What should brands pay attention to in influencer contracts?

Conducting influencer collaborations solely through messaging applications can lead to significant disputes between the parties in the future. Therefore, preparing a written influencer contract is beneficial.

The following issues should be specifically addressed in the agreement:

• The social media platforms where the post will be shared are:
• Type of content, number of pages, and publication date,
• The language to be used in the advertisement description,
• The fee to be paid to the influencer and the payment schedule,
• Status of free products or services,
• Discount code and sales commission system,
• The brand has the right to approve the content
• Avoiding the use of misleading and unproven claims,
• Usage rights for intellectual and artistic works,
• Protection of personal data,
• Rules regarding the use of children in advertising,
• How long the post will remain online,
• The obligation to remove content that is unlawful
• Liability arising from administrative sanctions and third-party claims.

However, including a clause in the contract stating "All legal responsibility rests with the influencer" does not automatically eliminate the brand's liability under public law and consumer law. While such a clause may be important in the internal relationship between the parties, it does not provide absolute immunity from liability that could be asserted against public authorities and consumers.

How does the Advertising Board monitor influencer posts?

In Türkiye, one of the key institutions overseeing commercial advertising is the Advertising Board. The Board can review social media content on its own initiative or upon receiving complaints.

During the review, the sharing;

• Whether the nature of the advertisement is clearly stated or not,
• Whether it misleads the consumer or not,
• Whether it contains unproven claims,
• Whether or not it contains a health declaration,
• Whether it affects children or vulnerable consumer groups,
• Whether the visual and auditory elements are realistic

assessable.

If a legal violation is detected, sanctions such as suspending the advertisement, removing the content, and imposing administrative fines may be considered. Depending on the specifics of the case, it is also possible for different institutions to conduct investigations.

Does deleting a post eliminate responsibility?

The fact that an influencer deletes a post after a review or complaint does not mean the violation never occurred.

Social media content can be identified through screenshots, video recordings, platform data, correspondence, and campaign documents prepared by the brand. Even if the post was only online for a short time, it may have reached thousands of people.

Therefore, even if deleting illegal content after it has been published is considered a positive action, it does not automatically eliminate liability for past violations.

What happens if a consumer is harmed by influencer advice?

Consumers who purchase a product based on an influencer's advertisement may pursue various legal avenues if the product turns out to be defective, lacks the promised features, or causes health problems.

Depending on the specifics of the case;

• To the seller,
• To the provider,
• To the producer,
• To the importer,
• To the advertiser,
• To the influencer

Demands regarding this may arise.

However, it is not accurate to say that the influencer is automatically responsible for every defective product. The specific claims the influencer made about the product, whether they disseminated these claims knowingly or without due diligence, whether they concealed an advertising relationship, and whether there is a causal link between the consumer's harm and the dissemination of this information must be evaluated separately.

For example, if an influencer claims to use a product they don't actually use and makes guaranteeing statements like "It definitely works," the risk of liability increases.

How can consumers tell if a post is an advertisement?

Not every piece of advice you see on social media should be considered independent user feedback.

The following signs may indicate that the post was made as part of a commercial collaboration:

• Direct brand labeling,
• Giving followers a special discount code,
• Sharing a purchase link,
• The promotion of the same product by multiple influencers in a short period of time,
• Listing the product's features in a manner similar to advertising text,
• Providing campaign dates and pricing information
• The product packaging and brand logo should be particularly highlighted.

While these factors alone do not constitute conclusive evidence, they can be considered when evaluating the advertising nature of the content.

Consumers can report content they suspect of being advertising, even if it's not explicitly labeled as such, to the relevant platform, brand, or authorized public authorities.

Sincerity on social media does not eliminate legal responsibility

The main reason influencer advertising is effective is that the content seems authentic and everyday. However, the fact that a post was filmed at home, uses natural conversational language, or that the influencer genuinely likes the product doesn't negate the commercial nature of the content.

From a legal standpoint, the determining factor is whether a direct or indirect benefit is received in exchange for the sharing of information, and whether the consumer is informed about this relationship.

Because social media advertising disguised as "friend recommendations" can be more effective than traditional advertising, there is a need for greater transparency.

The Importance of Legal Research in Influencer Advertising

Influencer advertising is a constantly evolving field, with each new social media format creating different legal challenges. Live streams, short videos, linked sales systems, subscription models, virtual influencers, and AI-generated content are all bringing about new types of disputes.

Therefore, simply reading the legal provisions is not sufficient. Advertising Board decisions, administrative court rulings, consumer disputes, and relevant specific legislation must be considered together.

Through online legal research platforms;

• Decisions are made regarding similar advertising content,
• The Advertising Board's approach,
• Current legislative provisions,
• Court precedents,
• Administrative sanctions

They can be examined comparatively.

Conclusion: The line between recommendation and advertising should be clear

Influencer advertising has become an indispensable element of the digital economy. While it provides an effective way for brands to reach large audiences, it also constitutes a significant revenue model for influencers.

However, presenting a piece of information with economic benefit as personal advice can undermine a consumer's right to make informed decisions. Therefore, the advertising relationship must be clearly stated, claims must be based on facts and verifiable data, no definitive health outcomes should be promised, and visual content should not be misleading.

Brands, agencies, and influencers should consider that they may be jointly responsible for the legality of advertising. Consumers, on the other hand, should be aware that not every recommendation they encounter on social media may be an independent user experience.

In conclusion, trust on social media is maintained through transparency, not follower count. If content is intended for advertising purposes, clearly stating this is not only a legal requirement but also a fundamental necessity for honesty towards followers.