Turkish Constitutional Court ("Court") annulled the paragraph 12 of Article 77 of the Consumer Protection Law, which granted the Advertisement Board ("Board") the power to partially or entirely block access to websites containing unlawful advertising content. The relevant rule was considered to be unconstitutional pursuant to the Court's decision dated 13 September 2023 and numbered 2022/70 E. - 2023/152 K. which was published on the Official Gazette dated 27 October 2023 and numbered 32352. Since the legal gap, that might arise due to the annulment of the subject rules, is deemed to damage public interest, it has been decided that the Court's decision will enter into force nine months after the publication of the decision in the Official Gazette. Therefore, the annulment provision duly entered into force on 27 July 2024.
Accordingly, the Advertisement Board no longer has the power to impose administrative sanctions in the form of blocking access to websites or web pages that publish unlawful advertisements. Since the date when the annulled provision was added to the Consumer Protection Law and came into effect (October 1, 2022), the Advertisement Board had effectively and fairly exercised its power to block access to web pages containing unlawful advertisements. Particularly in situations where the advertiser of the website could not be reached or where there was an urgent need to cease the unlawful advertisement in question, the access ban could be effectively applied. In this regard, it was implemented as highly effective method aimed at terminating unlawful advertisements and protecting consumers.
Indeed, the Advertisement Board continued to exercise its power to block access to ensure the effectiveness of its decisions until the Constitutional Court's annulment decision came into effect. For example, the Advertisement Board, in its meeting dated 11 June 2024 and numbered 346, determined that a website, which misleadingly implied that it was authorized to sell products belonging to a well-known electronics brand despite having no commercial affiliation with the brand and failed to deliver the products despite accepting payments from consumers, was engaging in misleading practices and violating the principles of fair competition. As a result, the Board decided to block access to the unlawful website in question. This decision was entirely appropriate, as it aimed to effectively cease the violation concerning a website engaged in deceptive advertising and commercial activities that misled and exploited consumers' trust.
As mentioned in our article titled "Advertisement Board's Power to Block Access was Annulled1" the Court did not rule that the mere fact that the Advertisement Board was equipped with the power to block access to websites was unconstitutional per se. However, the Court concluded that the structure of the subject administrative sanction under the Consumer Protection Law was not in compliance with the principles of proportionality and necessity.
In fact, the Advertisement Board's power to block access was subject to specific conditions outlined in the law, and this power was used diligently by the Board. An examination of the decisions made during this period reveals that the power to block access was an effective sanction mechanism. Therefore, we believe that it is important for the legislative authority to regulate a similar sanction mechanism, taking into account the proportionality and necessity principles highlighted in the Constitutional Court's decision, as this would be crucial for protecting consumers against unfair commercial practices, ensuring effective competition in the market, and providing comprehensive oversight against violations of trademark rights.
Footnote
1 https://gun.av.tr/insights/articles/advertisement-board-s-power-to-block-access-was-annulled
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