1. Digital media consumption is ever growing, and with it, the increasing reach of influencers. With the plethora of content available online, it may be difficult for consumers to identify that which is sponsored or promotional in nature, and can thus be easily misled.
2. After releasing its initial draft guidelines for public consultation, the Advertising Standards Council of India (ASCI), on May 27th of 2021, released its new Guidelines for Influencer Advertising in Digital Media (Guidelines) to ensure that consumers are aware when 'something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain.'1 Effective from June 14th of 2021, all content published by influencers must comply with these Guidelines.
3. The Guidelines are specific to 'digital media,' which is broadly 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...,' and encompasses, without limitation, the internet, on-demand across platforms, mobile broadcast, mobile, communication content, websites, blogs, apps, and others.2 They apply to influencers who are 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,' and also to 'virtual influencers' that are 'fictional computer-generated people or avatars who have the realist characteristics, features and personalities of humans, and behave in a similar manner as influencers.'
4. The two main elements of the Guidelines are: disclosure and due-diligence, which apply when there is a material connection between an advertiser and influencer. Such a material connection can include, but is not limited to, 'benefits and incentives such as monetary or other compensation, free products with or without any conditions attached including those received unsolicited, discounts, gifts, contest and sweepstake entries, trips or hotel stays, media barters, coverage, awards or any family or employment relationship, etc.' Thus, this material connection is not limited to material compensation only, but when anything of value is provided in exchange for mentioning or talking about the advertiser's products or services - irrespective of whether the opinion is unbiased or fully originated by the influencer.3
5. Disclosure labels are mandatory on all advertised content published by social media influencers or their representatives, on their accounts.4 Clearly this would then mean that if a material connection is absent and the influencer is merely providing their genuine opinion, it would not constitute as an advertisement and thus no disclosure would be required.5
5.1. The Guidelines provide instructions on manner in which disclaimer labels are to be displayed. These include for it to not be hard to miss,6 hidden away in the influencer's profile and requiring a person to 'click more' to find it,7 or buried in a group of hashtags or links.8 The label is to be in addition to the relevant platform's disclosure tool,9 and is to be in English or same language as the advertisement.10 Further, specific instructions for disclosure for pictures and videos without text,11 livestreams,12 and even audio media,13 have been outlined. For proper identification of the content, the disclosure should contain one or more of these labels: 'advertisement,' 'ad,' 'sponsored,' 'collaboration,' 'partnership,' 'employee,' or 'free gift.'14 In instances where a consumer is interacting with a virtual influencer, it should be additionally disclosed that the interaction is not with a real human being.15
5.2. Under the Guidelines, the responsibility does not solely lie on the influencer to ensure that the necessary disclosures are made, but also on the advertiser to ensure that the advertisements posted by the influencer adhere to the ASCI Code for Self-Regulation (Code) and its relevant guidelines.16
6. The due diligence requirement under the Guidelines advises influencers to review and satisfy themselves that the advertiser is in a position to substantiate the claims made in the advertisement.17
7. As the ASCI is a voluntary self-regulation organisation and not a government body, doubt is often cast on its enforcement ability. However, ASCI has industry-wide recognition, is represented in government committees working on advertising content, and has its Code appended in the Television Network Rules of 1994. Being self-regulatory in nature, ASCI has its own complaints procedure in place which applies to these Guidelines too.18
8. The Bombay High Court in a recent case recognized that a 'social media influencer' bears a higher responsibility to ensure the truthfulness of their statements, than an ordinary person, owing to their popularity.19 Thus, the Guidelines provide a much-needed start at regulating the nexus between influencers and advertising, with the aim of ensuring consumer protection.


Footnotes

1. Preamble to the Guidelines.

2. As per the Guidelines, the definition of 'Digital Media,' includes, but is not limited to:

1. 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.)

2. 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.

3. Digital TV (including digital video broadcasting handheld and terrestrial), etc.

4. NSTV (non-standard television)

5. DDHE (digital delivery home entertainment)

6. DTT (digital terrestrial television).

3. Clause 1.1 (b) of the Guidelines.

4. Clause 1 of the Guidelines.

5. Clause 1.1 (d) of the Guidelines.

6. Clause 1.2 (a) of the Guidelines.

7. Clause 1.2 (b) of the Guidelines.

8. Clause 1.2 (c) of the Guidelines.

9. Clause 1.2 (d) of the Guidelines.

10. Clause 1.3 (b) of the Guidelines.

11. Clause 1.2 (e) of the Guidelines.

12. Clause 1.2 (f) of the Guidelines.

13. Clause 1.3 (g) of the Guidelines.

14. Clause 1.3 (a) of the Guidelines.

15. Clause 1.4 of the Guidelines.

16. Clause 1.5 of the Guidelines.

17. Clause 2 of the Guidelines.

18. How to Complain, Advertising Standards Council of India, https://ascionline.in/index.php/how-to-complaint.html, last accessed on July 18th, 2021.

19. Marico Limited vs. Abhijeet Bhansali, 2020 (81) PTC244 (Bom).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.