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As digitalization accelerates day by day, consumer behavior and preferences are also significantly affected by this transformation. Consumers widely use social media platforms and various online websites to share their opinions about the goods and services they consume with the broadest possible audience. Indeed, consumer reviews bear great importance as they influence the choices and tendencies of other consumers. Due to this very significance, Articles 28/B titled "Consumer Reviews" and 28/C titled "Consumer Complaints" were introduced into the Regulation on Commercial Advertisements and Unfair Commercial Practices in 2022, which is a relatively recent development. Although these provisions set forth detailed rules regarding the publication of consumer reviews and complaints, they do not regulate the limits of criticism within such statements.
While consumer comments serve as an important tool to improve service quality and inform consumers about goods and services, determining how to address situations where such reviews reach a level that may harm the commercial reputation of businesses becomes essential. In this context, drawing the line between the consumer's right to criticize and unfair competition through disparagement may be challenging. Within this framework, the relationship between unfair competition provisions under the Turkish Commercial Code No. 6102 ("TCC") and consumer criticism will be examined below in detail.
Unfair competition is generally defined as acts or commercial practices that affect the relationship between competitors or between suppliers and customers, which are deceptive or otherwise contrary to the principle of good faith1. The rules governing unfair competition are regulated under Articles 54 and the following of the TCC. The most common forms of unfair competition are listed as examples under Article 55 of the TCC. Within this scope, in order to establish unfair competition through disparagement under Article 55(1)(a) of the TCC:
- there must be a statement,
- the relevant statement must concern another person's business, goods, business products, prices, activities or commercial affairs, and
- the statement must be false, misleading, or unnecessarily offensive2.
A statement is considered false when it does not reflect the actual circumstances. For example, in a case reviewed by the Court of Cassation, a notification asserting that a vehicle's warning light malfunction was due to poor-quality fuel—despite this not being the actual cause—was deemed to constitute disparagement through false statements3.
Today, it is quite common for consumers to comment on and rate products and services online. Particularly on consumer-complaint-oriented websites such as Şikayetvar, consumers can share their negative experiences and complaints in detail regarding companies operating in various sectors. In cases where consumers state online that they are dissatisfied with a product or service, determining whether such statements qualify as mere criticism or amount to unfair competition through disparagement may sometimes be challenging. Divergent interpretations may arise, especially where a consumer's statement, made upon dissatisfaction with a product, exceeds the limits of criticism and becomes unnecessarily offensive, thereby potentially constituting disparagement. There is a general acceptance that certain categories of statements do not constitute disparagement. Accordingly, statements based on scientific research, statements falling within freedom of expression and criticism, statements within the scope of freedom of press, statements constituting complaints or claims within the right to legal remedy, and statements made by official authorities are generally not considered to constitute unfair competition through disparagement4. However, although ordinary online reviews published by consumers may fall within the scope of freedom of expression, statements that exceed the limits of criticism and contain unnecessarily offensive or defamatory remarks against a business or its products/services may constitute unfair competition through disparagement5.
In its assessments on this matter, the Court of Cassation evaluates the wording used by consumers in each concrete case, together with the nature of the relevant product/service and the aspects that caused dissatisfaction. For instance, in a case reviewed by the Court of Cassation, a group including the defendant launched a website named www.yurticikargomagdurlari.com and posted statements such as "agencies have fallen into debt due to unjust and unlawful practices, they were deceived, exposed to vile, disgraceful and hostile policies, left unemployed and helpless, and subjected to unimaginable lies and slanders." Upon examining the case, the Court determined that employees acting as branch managers were designated as agents only in form, enabling the employer to continue business operations, and that employees who rejected this change were dismissed. In light of these findings, the Court held that comments expressing reaction to unfair practices fell within the scope of freedom of expression and did not constitute unfair competition through disparagement6.
Conversely, in another case reviewed by the Court of Cassation, the defendant commented on a Facebook page named "Activeklamp Fun Club" that "...the reliability of circumcision instruments used in such a sensitive surgical procedure such as circumcision must be proven through scientific studies. There is no scientific study on Activeklamp. Any problems arising from circumcisions performed with this product will harm you." The Court of Cassation concluded that such statements constituted unfair competition, as they disparaged the product without legal, scientific or factual evidence and had the potential to alter purchasing preferences of potential customers7. In the other case, where the consumer expressed dissatisfaction with car service by stating online that "Do not even consider going near ... as a service center, you will suffer. Have your maintenance done in an industrial shop. I will never take my car to ... service again. They caused us great harm. They did not stand behind their defective transmission," the Court found such comments to exceed the limits of criticism and complaint, deeming them defamatory, reputation-damaging and misleading for third parties, and awarded moral compensation8.
Another critical aspect is whether companies hosting customer review websites can be held liable for complaints or allegations of unfair competition through disparagement. As these platforms are not product providers, they may lack knowledge about the nature of the product and may not always be able to confirm whether the reviewer is an actual consumer. In a case concerning the website www.sikayetvar.com, an unfair competition claim was filed against the hosting company alleging that false complaints were published, misleading consumers, and that the content remained online despite warnings. The Court referred to Article 5 of Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed Through Such Publications9 concerning the general liability of hosting providers yet ruled that the published complaints were limited to adverse experiences related to services received by consumers and did not constitute unfair competition through disparagement10. Nevertheless, this decision is notable as it highlights that hosting providers may potentially bear liability under Law No. 5651 if they are duly notified of defamatory content constituting unfair competition.
Where consumer criticisms constitute unfair competition, businesses may assert certain claims under Article 56 of the TCC. These include requests for determination of unfair competition, injunctions, cessation and removal of consequences, publication of corrective statements, and claims for material and moral compensation.
While the internet and social media provide consumers with powerful tools to make their voices heard, they also introduce reputational risks for businesses. In general, consumer criticism is evaluated within the scope of freedom of expression. However, when this freedom is abused, it may transform into unfair competition. Therefore, it is essential that consumers exercise caution and refrain from exceeding the limits of criticism when commenting on goods and services purchased online.
Footnotes
1 İsmail Kayar, Commercial Law under Turkish Commercial Code No. 6102, Seçkin Publishing, 2018, p. 202.
2 Füsun Nomer, Turkish Commercial Code Symposium III, On İki Levha Publishing, 2020, p. 23.
3 Court of Cassation 11th Civil Chamber, 04.04.2019, File No. 2017/3324, Decision No. 2019/2631.
4 Engin Erdil, Unfair Competition Law, Vedat Publishing, 2012, p. 72 et seq.
5 Hilal Betül Güngüneş Şahin, "Evaluation of Advertisements Made Through Social Media Influencers within the Scope of Unfair Competition," International Journal of Humanities and Social Sciences Review, 2022.
6 Court of Cassation 11th Civil Chamber, 01.06.2015, File No. 2015/1372, Decision No. 2015/7393.
7 Court of Cassation 11th Civil Chamber, 04.12.2019, File No. 2019/438, Decision No. 2019/7832.
8 Court of Cassation 11th Civil Chamber, 19.01.2015, File No. 2014/19106, Decision No. 2015/642.
9 Pursuant to Article 5(2), the hosting provider is obliged to remove the unlawful content it hosts from publication upon being notified in accordance with Articles 8 and 9 of this Law.
10 Court of Cassation 11th Civil Chamber, 10.09.2018, File No. 2016/14151, Decision No. 2018/5088.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
