| Ezgi ER Senior Lawyer | Işınsu COŞKUN Trainee Lawyer |
ABSTRACT This study addresses the legal issues arising from search engine promotional activities, which constitute a significant branch of digital advertising. Given the power of online marketing strategies, particularly those conducted through search engine optimization and search engine advertising practices, to influence consumer decisions, it is emphasized that these strategies should be subject not only to commercial but also to legal evaluation. The study examines the legal consequences that methods such as keyword manipulation, use of misleading content, trademark infringement, and unfair search engine optimization practices may entail within the framework of Law No. 6502 on Consumer Protection, Regulation on Commercial Advertising and Unfair Commercial Practices, and Industrial Property Law No. 6769.
Keywords: Digital Marketing, Search Engine Advertising, Deceptive Advertisements, Advertising Law.
INTRODUCTION In recent years where digitalization has accelerated, the transformation of commercial communication tools has reshaped not only marketing strategies but also legal evaluation criteria. In particular, advertising and promotional activities conducted through online search engines have become a medium that directly affects consumer economic behaviors; this situation has necessitated the examination of such activities in terms of consumer law, competition law, and intellectual property law. Advertisers’ efforts to increase their visibility by leveraging the algorithmic structure and keyword system of search engines can sometimes lead to practices bearing the quality of misleading advertisements or to unfairly benefiting from the distinctive elements of competitor brands. Such practices both impair consumers’ right to be informed correctly and disrupt market balance, thereby creating an environment of unfair competition. This study aims to analyze the legal nature of promotional activities conducted on search engines and the overlooked illegality risks in practice; in particular, it evaluates the position of methods such as keyword manipulation, use of misleading content, trademark infringement, and unfair search engine optimization strategies within legal boundaries. The purpose is to demonstrate that digital marketing strategies should be addressed not only from a technical but also from a legal perspective.
1. DEFINITION AND LEGAL QUALITY OF MARKETING ACTIVITIES IN SEARCH ENGINES Search engine advertising, which has become one of the fundamental tools of digital marketing today, refers to promotional activities carried out to ensure that content matching certain keywords entered by users in search engines appears in the top rankings. This method enables businesses to increase their online visibility and reach their target audience directly. The rapid proliferation of internet usage since the second half of the 1990s paved the way for the transfer of advertising to digital platforms. With this transformation, different types and methods developed in online advertising; internet advertising has been divided into various categories within itself.¹ Among these categories, search engine optimization (“SEO”) and search engine advertising (“SEA”) stand out within the scope of search engine marketing (“SEM”). SEO includes technical and content improvements made to ensure that websites rank higher in search results without requiring any payment from the websites. On the other hand, SEM is a digital marketing strategy aiming for websites to appear in higher positions and more frequently on search engine results pages. Although both SEM and SEO aim to increase visibility, one of the sharpest differences between them is that in SEM this is done in exchange for payment. SEA is a subcategory of SEM and covers only paid advertisements. The most well-known example is keyword-based advertising campaigns conducted through the Google Ads platform. In this system, advertisers bid for specific keywords and appear before users through sponsored content. Search engine marketing activities, by their nature, are evaluated within the scope of “commercial advertising.” According to Article 61/1 of Law No. 6502 on Consumer Protection (“TKHK”), commercial advertising is defined as “marketing communication made for the purpose of informing, directing, or persuading the consumer.” In this respect, it would not be wrong to state that promotional activities conducted through search engines also bear the quality of commercial advertising to the extent that they aim to influence the consumer’s economic decisions. In this context, principles such as “accuracy and honesty” and “not being deceptive and misleading” set forth in the Regulation on Commercial Advertising and Unfair Commercial Practices (“Advertising Regulation”) also cover advertisements made on search engines. In this regard, the use of competitor brands as keywords, appearing prominently in search results in a misleading manner, or advertising forms aimed at manipulating consumer perception may become illegal within this scope. Search engine advertisements play a fundamental role particularly in the customer acquisition strategy of e-commerce platforms. Today, since the first content encountered by consumers in the process of researching a product or service is generally search engine advertisements, the effects produced by this content within the scope of consumer law carry significant importance. In this context, given that search engine advertisements directly affect the consumer’s purchasing decision, misleading content or keyword strategies structured in a manner that distorts competition carry the potential to violate both consumer law and competition law. In this framework, advertising activities conducted on search engines are activities subject to legal supervision not only as a digital marketing strategy but also in terms of protecting consumer rights and ensuring fair commercial competition.
2. OVERLOOKED ELEMENTS LEADING TO ILLEGALITY OF SEARCH ENGINE ADVERTISEMENTS
A. Keyword Manipulation In order for consumers to reach their targeted results more quickly in online searches, SEOs save site information and detailed information about products following the establishment of the site with keywords and upload them to the system.² Within this scope, the method of using registered names belonging to competitor companies or brands as keywords by the advertiser is quite frequently resorted to within the scope of search engine advertising. This practice is called “trademark bidding” in international terminology. The advertiser purchases the registered trademark of a competitor firm as a search keyword and displays their own advertisement to users who make this search. In this case, the searching consumer is directed to a different business instead of the brand’s official website or authorized seller, which is evaluated among situations that impair intellectual property rights as behavior that weakens the brand’s distinctive power and provides unfair benefit from reputation. The situation in question both causes the consumer to be deceived and may bear the quality of trademark infringement. In particular, highlighting the brand name queried by the consumer in the advertisement content creates the impression in the user that the product queried is the product presented in the advertisement, and the situation in question is evaluated within the scope of misleading advertisement under TKHK Art. 61 and Advertising Regulation Art. 7.
B. Presentation of Product or Service Differently from Its Actual State Providing misleading information about the price, qualities, warranty period, or technical specifications of the product in search engine advertisements is also a frequently encountered situation. Such advertisements are arranged solely for the purpose of increasing click-through rates but also create a directly deceptive effect on the consumer’s decision-making process. Pursuant to Article 7 of the Advertising Regulation, commercial advertisements must be “accurate, clear, and honest.” Again, according to Article 8 of the Advertising Regulation, since “presenting the product or service in a manner that will create an impression different from its actual qualities” falls within the scope of deceptive advertising, it constitutes a violation of consumer law. In its decision dated 12 March 2024, with file number 2024/1487, the Advertising Board found a company’s promotion of its own product through the Google Ads platform by using a competitor firm’s registered trademark as a keyword to be “of a nature misleading to consumers” and issued an advertisement suspension decision based on the principle of honesty in Article 7 of the Advertising Regulation.³
C. Threshold of Influencing Consumer Economic Behavior Pursuant to Article 61 of the TKHK, one of the criteria taken as basis in determining whether an advertisement is deceptive or misleading is its capacity to influence the consumer’s economic behavior. In this context, if a search engine advertisement affects the consumer’s economic decisions such as whether to purchase a good or service, which brand or model to prefer, and the relevant decision is based on false or distorted information contained in the advertisement, it must be accepted that the advertisement in question is illegal. In the Advertising Board decision dated 4 April 2023, numbered 2023/733, it was created the impression that a shirt product was on sale at a price of 31.99 TL on an e-commerce site, but when the link was clicked, it was understood that the product was out of stock. It was determined that direction to the website was made by presenting this product, which was not actually on sale, at a low price compared to similar products; thus consumers were misled and no information was provided regarding the duration of price validity or stock limit. These promotions were evaluated as being of a deceptive and misleading nature to consumers, and it was decided that the relevant advertisements were contrary to Article 61 of the TKHK, and an administrative fine was imposed on the relevant firm and it was decided to suspend their advertisements.
D. Benefiting from Brand Value Through Unfair SEO The effort to rank high in organic search results by intensively using the name or distinctive elements of a competitor brand in texts through SEO techniques is similarly qualified as trademark infringement and unfair competition. With this technique, the consumer is directed to the site of a business they are not actually interested in during their searches, and traffic and revenue are generated through the brand’s reputation. In the Advertising Board decision dated 2 February 2023 and numbered 2024/1933, it was determined that a company promoted products belonging to a brand for which it was not actually an authorized seller by using the expression “Turkey Distributor” in Google advertisements through its website. It was evaluated that this situation was of a nature misleading to consumers, user searches were manipulated with the search engine advertisement text, and it constituted an unfair commercial practice. It was concluded that the relevant advertisements were contrary to Articles 7 of the Advertising Regulation and Articles 61 and 62 of the TKHK, and it was decided to impose an administrative fine and advertisement suspension sanction on the advertiser. The situation in question bears illegality pursuant to Article 7 of Industrial Property Law No. 6769 since it constitutes trademark infringement through the use of a trademark identical or indistinguishably similar to a registered trademark for identical or similar goods or services in the course of trade in the form of internet domain name, redirect code, keyword, or similar forms.
CONCLUSION Search engine advertising is one of the methods frequently resorted to within the dynamic structure of digital marketing for businesses to increase their visibility and reach consumers directly. However, this type of advertising should be evaluated within a legal supervision area not only as a technical and strategic marketing tool but also as an element affecting consumer behaviors. As addressed in the study; methods such as keyword manipulation, presentation of product or service differently from its actual state, directing the consumer’s economic behavior, and unfair SEO practices create significant drawbacks both in terms of consumer law and intellectual property and competition law. Such practices constitute illegalities within the scope of TKHK, Advertising Regulation, and Industrial Property Law No. 6769 and may be subject to sanctions before both the Advertising Board and judicial authorities. Therefore, acting in accordance with the principles of transparency, honesty, and correct information in online advertising practices will not only increase consumer trust but also contribute to the protection of fair commercial competition and trademark rights.
¹ Sirovich, J., & Darie, C., Professional Search Engine Optimization with PHP A Developer’s Guide to SEO. Wiley Publishing 2007, p.5 ² Akın AY, “Search Engines and Google Algorithms as Digital Marketing and E-Commerce Tools”, Hatay Mustafa Kemal University Journal of Institute of Social Sciences, 2023, p.300. ³ Decision of the Presidency of the Advertising Board dated 12 March 2024, with 343rd meeting number, file number 2024/1487