The Status of Influencers and YouTubers in Turkish Internet Law

Introduction

In general terms, individuals who supply video content to Web 2.0/social media-based video platforms that is not entirely plagiarized or copied—specifically, content incorporating "their own creative contributions or produced directly by themselves"—may properly be designated as YouTubers. This concept has expanded beyond a term utilized solely to define content creators on YouTube.

The term "influencer," conversely, characterizes individuals who, by virtue of possessing a specific level of popularity on social media (which can be measured via organic follower counts), place a product, location, or directly a lifestyle at the focal point of their social media posts to exert an influence upon persons whose behavioral patterns they can sway (such as followers). However, this concept is predominantly utilized to define social media content creators who engage in surreptitious or overt advertising directly in exchange for consideration. In this article, the term "influencer" is deployed to denote social media users executing "advertising or promotional activities for consideration." Because a YouTuber who incorporates advertisements or promotions into their broadcast content simultaneously acquires the status of an influencer, the term "influencer" as utilized herein subsumes YouTubers who engage in advertising and promotion. Revenue-sharing arrangements regarding advertisements administered directly by platforms across videos on YouTube or derivative platforms fall outside the scope of this definition.

1) Content Provider Status and Liability

Internet users who generate diverse content on third-party social media platforms or on platforms operated directly by themselves, thereby "effecting a modification in the existing content of the website or application," hold the statutory status of a "content provider" pursuant to Law No. 5651 and its derivative implementing regulations.

Although specific disclosure obligations have been imposed within our legislation upon content providers pursuing such activities for "commercial or economic purposes," these obligations appear directed fundamentally toward entities producing content directly on platforms or websites operated by themselves. Regarding individuals who modify website content via user interfaces on their personal accounts on Instagram or YouTube for commercial/economic purposes and derive income therefrom, no specific statutory obligations are codified under Law No. 5651 or derivative secondary legislation.[1]

Notwithstanding this general statutory framework, Article 4 of the implementing regulation of Law No. 5651 dictates that internet broadcasts/content shares must conform to five fundamental principles. However, because these principles remain unelaborated and their non-observance is not linked to statutory sanctions, their status operates as teleological guidance. The relevant fundamental principles are as follows:

• Broadcasts must respect human dignity, fundamental rights, and freedoms.

• Broadcasts must not incorporate content detrimental to the physical, mental, and moral development of youth and children.

• Broadcasts must not harbor qualities impairing matters ensuring the peace and welfare of the family.

• Broadcasts must not encourage individuals toward harmful habits such as drug addiction, prostitution, obscenity, and gambling.

• Everyone must possess the right to reply and rectification regarding internet broadcasts infringing upon their personal rights.

Consequently, by virtue of their status as content providers, influencers are statutorily required to produce "lawfully compliant" content across all legislative domains within the general principles and tenets of Turkish law. Otherwise, these individuals shall be held directly liable for the content they generate within the framework of applicable liability theories. For this reason, on account of unlawful content generated by influencers, it is possible for them to face: foremost, non-pecuniary damages regarding personal rights infringements; pecuniary and non-pecuniary damages for all forms of harm, including intellectual property violations; criminal sanctions if such acts constitute criminal offenses; legal remedies/measures regarding the removal of content or access-blocking; and ultimately, non-judicial administrative measures such as account blocking or deletion due to breaching the terms of service policies of ISPs.

Regarding liability for content, the foundational legal principle of "holding the perpetrator accountable for their own act" is subjected to a dual distinction under Law No. 5651 with respect to content providers. Pursuant to Article 4 of Law No. 5651, content providers are held liable under general legal provisions for content generated directly by themselves without providing links to third-party content. Conversely, content providers who share content generated by third parties via citation or linking are held liable for such shared content only if it is explicitly manifest from the manner of presentation that they adopted the linked content and intended to facilitate user access thereto.

2) Status as Media Publisher / Advertiser

Under Article 4 of the Regulation on Commercial Advertising and Unfair Commercial Practices, online environments where advertisements are conducted are designated as "media publishers," defined as "the natural or legal person who owns, operates, or leases any medium where advertisements are published and delivered to the target audience."

Bespoke regulations governing influencers reside precisely within this status of "media publisher"—that is, entities executing advertising/promotional activities—under the Law on Protection of Consumers (LPC) and derivative secondary legislation. The most explicit regulatory instrument in this domain is the Guideline on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers, aimed at providing guidance to parties involved in advertising/promotional activities conducted through influencers. Article 4 of this Guideline designates influencers as "social media influencers," defined as "a person who engages in marketing communication via a social media account to promote the sale or lease of a good or service belonging to themselves or an advertiser, or to inform or persuade the target audience."

Therefore, by virtue of their status as media publishers, influencers must strictly observe the prohibited activities concerning unfair commercial practices and advertising set forth under Articles 61 et seq. of the LPC and detailed in the Regulation on Commercial Advertising and Unfair Commercial Practices. In addition, regarding advertisements and content shares conducted in compliance with this legislative framework, influencers must further conform to the specific provisions of the Guideline on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers.

The specific obligations of influencers and the statutory sanctions applicable to breaches thereof shall be detailed in a separate article. To summarize briefly here, non-compliance with these obligations shall ultimately trigger the statutory sanctions codified under the LPC.

Conclusion

The primary status of influencers and YouTubers under Turkish internet law is that of a "content provider" pursuant to Law No. 5651 and derivative secondary legislation. Secondly, social media content providers executing commercial advertisements (influencers)—whether generating content on YouTube or alternative platforms—acquire the additional status of "media publisher / advertiser" alongside their content provider status pursuant to the LPC and derivative secondary legislation. Influencers engaging in commercial advertising thus bear distinct, cumulative obligations arising from their dual capacity as both content providers and media publishers, exposing them to distinct statutory sanctions corresponding to each respective capacity.

Atty. Alp Öztekin, LL.M.

alpozztekin@gmail.com

[1] For detailed commentary on this point, see: Alp Öztekin, Teori ve Uygulamada Türk İnternet Hukuku, Seçkin Publishing, Ankara, 2021, pp. 306-307 et seq.