Social media influencers are the new age internet ‘celebrities’ who use social media platforms to rise to fame. These influencers create reels, blogs, videos, pictures, and more to gain followers and build connections with their audiences. Brands bank on the popularity of influencers to promote their products and services through influencer marketing.

Unlike, traditional advertisements, influencer marketing doesn’t appear at the first glance to be an advertisement. They might be mistaken by consumers as being the influencer’s personal recommendation instead of a commercial partnership. This also promotes false advertisement as influencers are seen endorsing products that they have never used and making false claims regarding them.

Regulation On Social Media Advertisements by

Influencers:

1. ASCI Guidelines

In India, the Advertising Standards Council of India (ASCI) is the self-regulatory body that sets guidelines for advertising across various mediums, including social media. The Guidelines for Influencer Advertising in Digital Media were released on June 14, 2021. These guidelines apply to all advertisers, including influencers, and aim to ensure that all advertising is truthful, honest, and not misleading.

Some of the key rules and guidelines for social media advertising by influencers in India are:

1. Disclosure of sponsored content: Influencers must clearly disclose any sponsored or paid content by using appropriate hashtags such as #ad, #sponsored, or #paidpartnership. The disclosure should be made upfront and prominently, and should not be buried within the post.
2. Truthful and honest advertising: Influencers must ensure that their advertising content is truthful and not misleading. They must not make false or exaggerated claims about a product or service or misrepresent its benefits or effectiveness.
3. Adherence to ASCI code: Influencers must adhere to the ASCI code for advertising, which includes guidelines on various aspects of advertising such as claims, comparisons, endorsements, and more.
4. Age-restricted products: Influencers must not promote age-restricted products such as alcohol or tobacco to minors.
5. Responsibility for content: Influencers are responsible for the content they post, and must ensure that it complies with all applicable laws and regulations, as well as community guidelines of the social media platform.

In addition to these guidelines, influencers must also comply with any specific guidelines or rules set by the social media platform they are using. For example, Instagram requires influencers to clearly disclose any sponsored content using its branded content tools. It is important for influencers to be aware of these rules and guidelines and ensure that their social media advertising practices are compliant with them. Failure to do so can result in legal action, fines, and damage to their reputation.

• Consumer Protection Act, 2019

The Consumer Protection Act, of 2019 addresses the evolving market scenario in the country. It provides consumers with enhanced protection and transparency in influencer marketing. The Act mandates that influencers disclose any material connections or commercial relations that they have with brands that they are promoting. This includes any payments, gifts, or other incentives they have received in exchange for promotion.

The act also prohibits misleading advertisements, which means that influencers must ensure that the claims that they make about the products or services they are promoting are truthful and not exaggerated. If an influencer makes false or misleading claims, they can be held liable for any harm caused to consumers.

Misleading Advertisements are defined in Section 2 (28) of the Act as an advertisement which

• falsely describes such product or service; or
  •  gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or
  • conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
  • deliberately conceals important information;

The act also provides consumers with the right to file complaints against any misleading or fraudulent advertisements. In case of any violation, the influencers can face penalties such as fines and even imprisonment. The punishment for the misleading advertisement includes imprisonment up to a period of 2 years with a fine that may extend up to ten lakh rupees. This Punishment is stated in section 89 of the Act. Section 21 of the act gives Central Authority the power to remove any false advertisement.

• What the Judiciary Says:

Marico Limited v Abhijit Bhansali [1]

The Bombay High Court, in its decision, had also identified “social media influencers” as a nascent category of individuals who have acquired a considerable follower base on social media and a certain degree of credibility in their space. The decision also noted the need to impose certain responsibilities on such influencers keeping in mind the power they wield over their audience and the trust placed in them by the public. 

 Aditya Kumar Jha v. UOI [2]the High Court of Allahabad held that the role of the ASCI is to ensure that advertisements are truthful and honest. Further, the test to determine if an advertisement is truthful and honest is the impact it has on a consumer and whether it is likely to mislead them.

Conclusion

According to some reports, half of the Indian population uses social media and this number is expected to keep growing. With the advent of digital media, influencer advertisement has become the new norm of advertisement. The Indian legislators have also taken notice of this and have accordingly come up with guidelines and statutes to stop misleading or false advertisements by influencers. The ASCI guidelines are being strictly applied to influencer and their posts with mechanisms for detecting violations set up in place.

BY-

SHAKSHI SWARNKAR

2ND YEAR LLB

ILS LAW COLLEGE, PUNE

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[1] 2020 SCC OnLine Bom 265

[2] 2017 SCC OnLine All 3922