January 2022

Don’t Like Share & Subscribe blindly: Says ASCI

“Hello everyone, please Like, Share & Subscribe” is probably the most cliche phrase used by influencers/content creators that we got used to just like the news regarding a new wave of COVID in recent times. But when a huge chunk of viewers actually follows these influencers, an inherent sense of responsibility is laden on their shoulders i.e., not to mislead their audience via endorsing shoddy products or services in exchange for a certain remuneration. However, not many are ready to take this liability, owing to which the Advertising Standards Council of India (ASCI) had to come up with certain rules and guidelines regarding advertisement on digital media platforms by the influencers, affected from June 2021.

The prime purpose behind this is to help the audience (consumers) in differentiating between paid promotional content from the ones which an influencer reviews with bona-fide intent. The whole idea has been adopted from the jurisprudence of “consumer protection” to prevent any misleading advertisements and to avoid abuse of trust and exploitation of innocent consumers who are generally unaware of the ‘material connection’ between their favorite influencer & the advertiser. This material connection is specified as any connection between the advertiser and the influencer that may affect the representation (review) made by the influencer owing to exchange of certain benefits and incentives including, issuance of free products or unsolicited gifts, discounts, contest, and sweepstake entries, trips or hotel stays, media barters, coverage, awards, and other similar perks.

The definition of an “influencer” as per these guidelines is basic & palpable i.e., “someone having access to an audience and power to affect such audiences’ purchasing decision or opinions about a product, service, brand or experience, because of the influencer’s authority, knowledge, position, or relationship with their audience”. The ASCI sensing the apparent impact of ‘Meta’ and ‘Metaverse’ went an extra mile and even defined “virtual influencers” as fictional computer-generated “people” or “avatars” that hold realistic characters like humans.

The fundamental thrust of these guidelines is on the ‘disclosure’ which needs to be divulged to the relevant audience, accompanied by ‘due-diligence’. So firstly, the advertisement must be readily distinguishable by average consumers through an approved disclosure label which needs to be conspicuous. Disclosures hidden or camouflaged in a profile, bio section, or in hashtags will not be considered valid. Secondly, the said disclosure label must be appropriate, prominent, clearly visible & suitable for all devices. It should contain the terms like ad, advertisement, sponsored, collaboration, partnership, Free Gift, etc, and should ideally be in English or any other language which can be easily comprehended by an average consumer.

Further, there are regulations for every type of advertised content created by the influencer i.e., if the advertisement is through a photo/video without subtitles/captions (like stories on Insta, Snapchat, etc.), a legible disclosure label needs to be superimposed over it. For a 15 second video, there should be a 3 seconds disclosure; for videos up to 2 mins, a 15 seconds disclosure and videos longer than 2 mins should have a permanent disclosure. In the case of live streams and audio promotions, the disclosure label should be announced at the beginning and the end of the broadcast.

The influencers have been specifically advised to be diligent while endorsing any advertiser i.e., he/she ought to conduct due diligence that determines whether the product or service can stand up to the claims made by the advertiser, and only then they should enter into an advertisement agreement. Traditionally, only the celebrities were covered under the parent ASCI Code but now with affordable internet and cheap mobile phones, every other person is trying to be an influencer, thus a framework was much needed to fill this void.

Many argue that these are mere guidelines that cannot be statutorily enforced but it should be noted that they have received judicial recognition as a standard industry practice. Further, for its effective implementation, the ASCI has recently launched its Whatsapp tool (+91 7710012345), where any aggrieved person can register his/her complaint. They also tied up with a European technology provider named “Reech” to identify influencers’ lack of transparency on social media which uses AI and machine learning tools to examine whether the content is sponsored or unsponsored. Once identified, ASCI sends a notice to the defaulting influencer, who can take corrective action by modifying the post as per the guidelines or he can raise his issue before the ‘Consumer Complaint Committee’, the outcome of which can obviously be challenged in regular Courts. Nevertheless, it is sincerely advised to all the budding influencers that prevention is always better than cure.

Atul Bhatt
LLB, 3rd year
Campus Law Centre
University of Delhi

“Justice Delayed Is Justice Denied”

In one sense, justice entails providing prompt and low-cost remedies to people who come to the court with legal issues. Delays in delivering justice have been construed as a denial of justice. When the preamble of the Indian Constitution mentions justice in all of its aspects – social, economic, and political – it expresses the yearning and goal of humanity for justice.

The principle of natural justice states that “justice should not only be done but it should be seen to have been done,” implying that people who receive justice must believe it has been done in their favor. Delay thwarts not only equity but also justice, and when it comes to the criminal justice system, it thwarts justice even more.

As the defender of people’s fundamental rights, the Supreme Court of India has broad obligations and powers to ensure a fast trial for the accused, and as such, in Hussainara Khatoon Vs. State of Bihar, took an activist approach. It noted that it followed the dynamic reading of Article 21 of the Indian Constitution in Maneka Gandhi vs. Union of India.

There is no question that a quick trial, by which we mean a trial that is properly expedited, is an inherent and necessary aspect of the fundamental right to life and liberty guaranteed by Article 21 of the Indian Constitution. Following the landmark verdict in Maneka Gandhi’s case, the entire human rights jurisprudence has been the outcome of a most remarkable and reasonable evolution of the law.

The formation of this new jurisprudence by the judiciary is the outcome of the case-by-case analysis. In the sphere of criminal law, the right to a speedy trial is the most essential basic human right. It has been developed by the judiciary through a process of creative interpretation. Despite the fact that speedy trial is not a clearly enumerated fundamental right in the United States of America’s Constitution (U.S.A.) The notion of the quick trial was first proposed in Maneka Gandhi’s case, nourished in Hoskot’s case, and ushered in with a judicial bang in Hussainara’s case.

In terms of the quick trial at the national level, there is evidence of speedy trial in the Ancient, Medieval, and Mughal periods, which expanded progressively and today occupy the position of fundamental rights.

Even though justice is supposed to be “simple, quick, cheap, effective, and significant,” Indians find it difficult to obtain, and one of the major reasons is the delay in the administration of justice. Many cases in India take up to ten years to resolve, and trials typically take longer than the statutory six months or two years, resulting in significant delays. According to published data, the number of criminal cases pending in subordinate courts in 2008 was 2.5 crore. According to reports, the high courts are now dealing with over 34 lakh cases.

Those who have been harmed physically, mentally, or financially turn to the courts in the hopes of redressing their concerns. They avoid taking the law into their own hands because they think that justice will be served by the courts at some point. As a result, the justice delivery system has a responsibility to provide timely and affordable justice to its customers without compromising the quality of justice or the elements of fairness, equality, and impartiality.

The judiciary, the legal profession, and the government must all take responsibility for this terrible development in the world’s largest democracy’s otherwise unblemished judicial record. The most serious flaw in India’s judicial system is the time it takes to resolve cases.

Vaidik Sharma
B.A.LLB 5th Year
Bharati Vidyapeeth, New Law College, Pune

5 basic agreements that won’t let ‘down’ your Start ‘Up’

By now if you don’t know what a start-up is, it’s a crying shame, as the start-up culture in
India is in its prime of life. India has now 54 unicorn companies and is ranked world number
three beating our colonial master UK (currently number four) and is now only behind China
and the US (according to Hurun Global Unicorn Index 2021).
Indian entrepreneurs are surfing well on the rising wave of start-up culture as they are
supported by the government’s ‘Start-up India’ and ‘Make in India’ programs that have
encouraged comparatively simplified start-up compliances. However, with the rising
the complexity of technology and the worldwide nature of transactions, it’s more important than ever
for emerging businesses to have a solid legal base, the foundation of which is laid by certain
basic agreements, such as-
Founders’ agreement
It is basically a document that sets out the details of the position of founders of any business
entity, it contains a roadmap of roles, responsibilities, operational structure of the business
that needs to be adhered to, just like a preamble for the constitution. However, many a time
this agreement is not there or is drafted poorly by the start-ups which should be avoided at all
costs. As an entrepreneur, one should not meddle with these foundational documents by
giving excuses of ignorance or of cost-cutting.
Employment agreement/ Service Agreements
These agreements are kept to clarify the employment relationship between the employer and
the employee. It ensures that both the employer and the employees are informed of their
rights and responsibilities, as well as binding the parties to the company’s laws. Many start-
ups do not have such agreements or by-laws in place, which are rules that regulate how the
firm operates. As a result, they have trouble working properly. This has serious financial
consequences, and the aftermath makes it impossible for the company to survive.
Confidentiality Agreements or Non-Disclosure Agreements (NDAs)
NDA is a budget-friendly technique to protect unnecessary exploitation of one’s business
concept. These days more & more work is outsourced to project-based employees or to
freelancers who cannot be entrusted with full accountability. The startups expose to risks
like the theft of ideas and other confidential business information which might be used
against the business. Hence, to avoid such scenarios, NDAs need to be drafted and used by
start-ups while discussing critical business information with people outside the organization.
Intellectual Property Agreement
This is a specific further addition to the NDAs, as the whole basis of the start-up drive intends
to pursue advancement, improvement, and commercialization of new products or processes,
driven by innovation which is nothing but their Intellectual property. The initial step for any
Start-up is to assess and focus on the IP Rights engaged with its business-like- Trademarks,
Copyrights, Designs, or Patents assume a vital part in any industry. Now and then IP
Rights are the main resource accessible and mystery ingredient with a Start-up. New
businesses can use the ‘Plan for Start-ups Intellectual Property Protection (SIPP) under the
Start-up India drive. Thus, having complete ownership and utilization of your IP is of utter
importance.

User Agreement/ Privacy policy
These days almost every business holds an online presence through a mobile app or via
the website. Consequently, it is essential to have an agreement between the app/website owner
and the user/customer, who is going to avail of the respective goods and services. It includes
limitations on how the site can be used, disclaimers, liability limitations, disclosure on the
site’s privacy policy in dealing with customer information, copyright protection warnings. It
also mentions the jurisdiction of the adjudicating authority in case of any dispute, which is
generally the principal place of the website/business owner.
Apart from these agreements, a proper winding-up or exit strategy should be designed by the
business owner. Although, no entrepreneur creates a start-up only to shut it down many times these entrepreneurs hold unusually high expectations from their business model that
they don’t want to even consider the scenario as to what will happen if their start-up fails.
This delusional attitude must be done away with and the whole winding-up process ought to be
made explicitly clear to all the stakeholders well in advance, to avoid any future litigations
based on personal grudges.
Lately, it has been observed that due to a lack of legal awareness various start-ups do not pay
much heed to these basic agreements and often get entangled in complex situations, either
due to the absence or poor draft quality of these agreements. Having these agreements in a place with proper drafting can avoid many of the common pitfalls that a start-up may encounter and can ensure the long-term efficacy of the business.

Atul Bhatt
LLB, 3rd year
Campus Law Centre
University of Delhi