“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.

By

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