GUIDELINES FOR INFLUENCER ADVERTISING IN DIGITAL MEDIA – AN ANALYSIS

INTRODUCTION

The Advertising Standards Council of India (ASCI), in February 2021, had released a draft set of guidelines for influencer advertising on digital media for consideration of stakeholder’s comments. The initial deadline to send in the comments was 8th March 2021, which was later extended by ASCI to 21 march 2021. On 27 May 2021, the final guidelines were released by ASCI, which will be effective from 14 June 2021.

WHAT IS ASCI

Most of the professional fields in India have self-regulatory bodies governing their activities. For the advertising industry, such a body was setup in 1985 as there was a lot of false, misleading and offensive advertising taking place. In the same year the ASCI adopted a code for self-regulation in advertising. The goals of ASCI as updated on their website are presented ad verbatim below:

  • ensuring truthfulness and honesty of representations and claims made through advertising and safeguarding against misleading advertising.
  • ensuring that advertising is not offensive to generally accepted norms and standards of public decency.
  • safeguarding against indiscriminate use of advertising for promotion of products or services which are generally regarded as hazardous to society or to individuals or which are unacceptable to society as a whole.
  • ensuring that advertisements observe fairness in competition and the canons of generally accepted competitive behaviour.

The ASCI comprises of Board of Governors, the Consumer Complaints Council (“CCC”) and its secretariat. It also includes representatives from all the industries connected with Advertising (Advertisers, Advertising agencies, Media (Print and digital), PR agencies and Market Research Companies). The CCC consists of 28 members: Six people representing their specific industries and rest from the civil society like lawyers, doctors, journalists, consumer activists etc. The decision taken by CCC with regards to any complaint is final and binding.

PROCECURE TO FILE A COMPLAINT WITH ASCI

In India there is no other body which regulates advertising content. Any advertisement that is released in India which violates the code adopted by ASCI, or seems objectionable to any person, he/she can file a complaint with ASCI. The CCC will then look in to this complaint and will provide adequate chance to the Advertiser to defend the advertisement against such complaint. If the CCC finds the advertisement to be in violation of the code of conduct, the advertiser has to voluntarily withdraw his advertisement or modify it.

THE ASCI GUIDELINES 2021

To understand the intent behind these guidelines it is important to read the Preamble of the Guidelines Ad-verbatim which is as follows:

“As digital media becomes increasingly pervasive and more consumers start to consume advertising on various digital platforms, it has become important to understand the peculiarities of these advertisements and the way consumers view them. With lines between content and advertisements becoming blurry, it is critical that consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain. Consumers may view such messages without realising the commercial intent of these, and that becomes inherently misleading, and in violation of clause 1.4 (misleading by omission) and 1.5 (abuse trust of consumers or exploit their lack of experience or knowledge)”

The Guidelines provides four definitions: “Influencer”, “Virtual Influencers”, Material connection and Digital Media. The Guidelines define influencer as follows:

INFLUENCER

“An Influencer is 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”

The Bombay High Court in the Matter of  Marico Limited v. Abhijit Bhansali which was delivered in January last year identified “social media influencers” as a nascent category of individuals who have acquired considerable follower base on social media and certain degree of credibility in their space. It also noted the need to impose certain degree of responsibility on such influencers keeping in mind the power they wield over their audience and the trust placed in them by their followers. An appeal was filed in this matter which is pending before the Supreme Court.

The other important term defined in these guidelines is “Virtual Influencers.” These are fictional, computer-generated people or avatars with characteristics and personalities of human beings and behave like influencers.

The Guidelines put forth the following requirements on the Influencer while advertising for a brand –

  • The Influencers should put a disclosure label if there is a Material Connection between the advertisers and the influencer. Material connection need not be limited to monetary compensation. Even if the influencer is advertising any of advertiser’s product in exchange of some free products or discounted products or services a disclosure is needed.
  • Even if the evaluations are unbiased or if they are fully originated by the influencers a disclosure is required. If there is no material connection and the influencer talks about any product or service they consumed and happen to like, then it would be not considered an advertisement and there is no need to post and disclosure for such products.
  • The Influencers should keep in mind while advertising that the disclosure is placed in such a manner that it grabs the attention of an average consumer. In addition to the platform’s disclosure tools (such as the ‘paid partnership’ feature available on Instagram, and the ‘sponsored’ feature available on Facebook) the influencer should himself disclose about the advertisement.
  • In case of a live stream or an audio media (like podcasts) the disclosure should be announced at the beginning and at the end of such live stream or audio media.
  • The disclosure label put up by an influencer should be understood by an average man. The Guidelines provide various labels to be used by the influencers.
  • In case of a virtual influencer it must be disclosed in addition with other disclosures that the audience is not interacting with a real human being.
  • The influencer should carry out due diligence before advertising any product on his/her platform. He/she should find out that the advertiser is able to substantiate any claims made in the advertisement.

OTHER LAWS PERTAINING TO SOCIAL MEDIA ADVERTISING

(A)The Consumer Protection Act 2019, which was brought in to force on 20th July 2020 replaced the Consumer Protection Act of 1986.This act was brought in force keeping in mind the increase in e-commerce services in the last decade and also to cover social media advertising which is at its peak today. Under the Consumer Protection Act the Central Consumer Protection Authority (CCPA) has powers to impose a penalty up to 10 lakhs upon the manufacturers or a Promoter for a misleading or false advertisement. If a manufacture or promoter indulge in subsequent misleading or false advertisement the penalty amount can go up to 50 lakhs. This Provision now gives a statutory right to the consumers to take action against a social media influencer if he/she promotes a false or misleading advertisement.

(B)The Draft CCPA (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020

In September 2020, the CCPA has released the Draft Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines. This guidelines have been drafted to regulate all types of promotions by promoters on any social media. These guidelines make it compulsory for an influencer to conduct due diligence on the facts and claims of the product before actually promoting it. The social media influencers may have to comply by these guidelines in the near future as they have not been put in force by the government.

CONCLUSION

The ASCI guidelines are a step taken in the right direction but as mentioned above, it is a self-regulatory body without the force of any law. Therefore, these guidelines cannot be enforced statutorily. However, the ASCI code is accepted cross the industry and has been recognised by various courts in India.

The CCPA is an authority under the Consumer Protection Act and so the guidelines which are to be brought in force by it can very well be enforced statutorily. The Government of India has brought the above mentioned guidelines at a crucial juncture when social media influencers are the biggest marketing instruments. It is in favour of both the influencers and the business owners to comply with the guidelines for the welfare of their followers and consumers to avoid any injury to their goodwill.

Author(s) Name: Alfahad Sorathia (Student, University of Mumbai)

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