Background
There were no explicit laws, regulations, or self-regulatory rules relating to advertising on social media in India until June 2021. The laws, regulations and provisions that apply to advertisements carried through conventional media channels applied to the control and supervision of advertisements on social media as well.
The Advertising Standards Council of India (ASCI) issued the final ‘Guidelines for influencer advertising in digital media’ (Guidelines) on May 27, 2021, which must be followed for all posts published by social media influencers. The goal is for consumers to be able to identify and differentiate paid promotional content from other content posted by influencers. The Guidelines are intended to prevent manufacturers and advertisers from using influencers for promotional posts or campaigns on digital media that may be misleading in nature, as well as to avoid abusing consumers’ trust or exploiting their lack of knowledge.
For example, a consumer may be unaware that an influencer discussing his/her favourite skincare product is providing an honest review or being compensated by the brands for endorsing their product. As a result, the influencer may market to the follower inadvertently. Indian courts are also taking note of the fact that influencers have a large following and credibility in their fields and can use goodwill to influence public opinion.
Overview
For the first time, the term Social Media Influencer (Influencer) has been legally defined with the Guidelines. Influencer is defined as “someone who has access to an audience and the power to affect their audiences’ purchasing decisions or opinions about a product, service, brand or experience, because of the influencer’s authority, knowledge, position, or relationship with their audience”.
Digital Media has been defined as “a means of communication that can be transmitted over the internet or digital networks and includes communication received, stored, transmitted, edited, or processed by a digital media platform. Digital Media includes but not limited to-
- internet (advergames, sponsored posts, branded content, promotional blogs, paid-for links, gamification, in-game advertising, teasers, viral advertising, augmented reality, native advertising, connected devices, influencers, etc.)
- On-demand across platforms including near video on demand, subscription video on demand, near movie on demand, free video. On-demand, transactional video on demand, advertising video on demand, Video on demand, pay per view etc.
- Mobile broadcast, mobile, communications content, websites, blogs, apps, etc. /Digital TV (including digital video broadcasting handheld and terrestrial) etc
- NSTV (non-standard television)
- DDHE (digital delivery home entertainment)
- DTT (digital terrestrial television)
Disclosures
The Guidelines make it mandatory for Influencers to label the promotional content they post and ensure that it is identified as paid promotion. The Guidelines place compliance obligations on both influencers as well as advertisers, which are as follows:
- If the advertiser has a ‘material connection’ with the Influencer, they must ensure that the advertisement complies with ASCI’s Guidelines for self-regulation of advertising content.
- The value of a material link isn’t solely based on monetary reward. If anything of value is given to mention or talk about the advertiser’s product or service, disclosure is needed. For example, if the advertiser or its agents provide free or discounted items or services, or other incentives, and the Influencer then promotes one of the advertiser’s products or services, a disclosure is required, even if they were not specifically instructed to do so.
- Since Influencers can advertise in a variety of formats on social media platforms – posts, stories, reels, livestreams, podcasts, and so on. The Guidelines specify disclosure standards for each sort of marketing based on its format. For instance, depending on the length of a movie/reel/video (less than 15 seconds, longer than 15 seconds but less than 2 minutes, 2 minutes or longer), disclosures must remain for a specific number of seconds. Disclosures must be made at the start and finish of live streams, as well as in the caption if the livestream is posted to the Influencer’s profile as a post.
- In addition to their disclosure responsibilities, Influencers are obliged by the Guidelines to do their own due diligence and assess and convince themselves that the advertiser is capable of substantiating the claims made in the advertisement.
Key Takeaways
The Guidelines come in light of increasing popularity and reach of social media Influencers on the internet who are being hailed as the new age marketing tool for almost all types of brands globally. Their wide reach amongst youngsters and their ability to influence consumer behaviour with content even as short as 15 seconds in duration, makes it important for certain oversight in the manner in which they operate and make commercial gains.
A case involving an Influencer was brought before the Bombay High Court. The decision of the Bombay High Court [1] was influenced by the nature of social media Influencers’ relationships with marketers and followers/subscribers. The Hon’ble Bombay High Court issued a temporary injunction against a social media influencer in relation to a video in which he assessed a branded coconut oil and compared it to virgin coconut oil. The video was deemed to be false and insulting by the Learned Single Judge. The Influencer in question filed an appeal, which overturned the Learned Single Judge’s decision with some changes to the video. Influencers must always remember that they have the ability to influence their followers. As a result, it is critical for them to be socially responsible and ensure that their content does not hurt or harm any individual or society in any way otherwise, they may face liability under consumer protection laws and even criminal law in some cases.
[1] Marico Limited versus Abhijeet Bhansali (2020(81) PTC 244(Bom)
Conclusion
With the fast rise of social media, the distinction between content and promotional content is becoming increasingly blurred. The traditional marketing structure is currently being modified by the popular social media influencer marketing plan. Consumers, on the other hand, have the right to know what material is paid for and what content appears naturally in the feeds of such influencers. The ASCI rules help to provide transparency to influencer marketing. Nowadays, customers are greatly affected by the choices of their favorite social media influencers and try to follow in their footsteps by purchasing the marketed goods and services. As a result, the rules are very necessary to defend and safeguard their interests.
By Yash Ahuja