Today we are living in a world where digital media is the new entertainment norm. According to January 2019 We Are Social report, 3.484 billion people actively use social media - that's 45% of the world's population.1 This recent growth in consumption of digital media has renovated the marketing landscape giving birth to a new way of advertising i.e. using influencers on social media to build & expand the market for products. Influencers are personalities in the digital media who have established themselves as specialists in various fields like fashion, fitness etc. Masoom Minawala Mehta, Komal Pandey, Aashna Shroff, Bhuvan Bam, Yashraj Mukhate, Ashish Chanchlani – are some of the well-known influencers in India today.
According to digital marketing agency AdLift, India's influencer market is estimated at $75-$150 million a year as compared to the global market of $1.75 billion. This is an industry that has become mainstream within the advertising space and is only expected to grow as more Indians go online.2
For brands today, marketing through influencers has evolved as a more convenient & chosen way of advertising their products and building a loyal customer base. For consumers, more than any other form of advertisement, the decisions are based on the advice of the influencers. The clothes they wear, the products they choose for themselves, the way they speak, everything becomes a trend.
With the increase in digital media consumption, the distinction between promotions and genuine reviews is blurring. Hence, a strong & clear line to distinguish between content prepared by influencers and promotional advertisement posts is a need now more than ever.
In the wake of this, the Advertising Standards Council of India (ASCI) on June 1, 2021, issued Guidelines for Influencer Advertising in Digital Media (hereinafter referred to as 'Influencer Guidelines'). The Influencer Guidelines primarily focus on having a disclosure on the promotional content & importance of due diligence related to the product that is being advertised. Subhash Kamath, ASCI Chairman, in this regard said that when people watch television or read newspapers, then they can easily distinguish between the program or content and the advertisement. They do not face any kind of confusion, but it is difficult to differentiate in social media. Thus, by these guidelines, consumers will be able to identify the difference between paid promotional content from influencer-generated content.
DEFINITION OF 'INFLUENCER' UNDER THE GUIDELINES
As per the Influencer Guidelines, an Influencer is a person 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. It further defines virtual influencers, are fictional computer-generated 'people' or avatars who have the realistic characteristics, features and personalities of humans, and behave similarly as influencers.
'DISCLOSURE' UNDER THE INFLUENCER GUIDELINES
Disclosure as per Guidelines
The Influencer Guidelines state that any social media influencer or its representatives, if any, should disclose to the consumers that the content they are promoting is an advertisement. Such disclosure needs to be there on their account whenever they promote any product or create an advertisement.
The onus of responsibility is on:
- The influencer or on their representative for making required disclosures on their publishing account.
- The 'advertiser' to make sure that influencers are obliging with the ASCI Code and its guidelines. The advertisers shall also ask the influencer to delete or edit the disclosure to comply with the guidelines.
What is the intent?
The intent behind making such disclosures mandatory is to make the consumers aware that the content they are viewing, hearing, or experiencing is an advertisement, which may or may not be researched by the Influencer posting it. Such disclosure should be clear, obvious, and without any discrepancy and should not leave any room for doubt amongst the consumers.
How to make such a disclosure?
The guidelines lay down that a "disclosure label" is to be used by the influencers whenever they post any advertisement on social media. Further, the disclosure should be "upfront" and "prominent" so that an average person does not miss it and is visible at the forefront.
For this, the guidelines also specify how the disclosure needs to be made to make aware the consumer about it without doing any research-
- Disclosures should be placed where they are "hard to miss".
- They should not be made at those places where an individual needs to do some efforts like clicking or researching about it.
- Some of the places where disclosures should not be made are the ABOUT ME section of the profile or at the end of the post, or in the bio of the influencers, or anywhere in the post wall etc.
- For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 3 seconds.
- For videos longer than 15 seconds, but less than 2 minutes, the disclosure label should stay for 1/3rd the length of the video.
- For videos that are 2 minutes or longer, the disclosure label must stay for the entire duration of the section in which the promoted brand or its features, benefits, etc are mentioned.
- Disclosure should not be made in between a lot of hashtags but should be clear and upfront.
- The guidelines also provide for a "platform disclosure tool" that should be used by the influencers.
- The disclosure should be easily comprehended by the users.
- Guidelines provide for a list of disclosures like- #ad, #advertisement, #sponsored, #collaboration, #partnership, #employee, #free gift.
- The list is not exhaustive but will be updated regularly.
- The primary language of the disclosure should be English but can be in other languages also that are easily understood by the users.
FOR PHOTOS OR VIDEOS
- The disclosure in case of photos or videos should be superimposed over the picture/ video so that the consumer can see it instantly.
- The guidelines also provide for the length and timing of the videos and the disclosure to be made on them.
FOR LIVE STREAMS
- The disclosure in such cases should be announced in the beginning and at the end.
- If the live stream is to be there in the form of a post, then, disclosure should be there in the caption too.
- The disclosure should be there at the beginning and the end of such audio media.
- Also, if a break is taken, then it should be made before and after every break too.
FOR VIRTUAL INFLUENCERS
- Virtual influencers are also entrusted with the responsibility to disclose to the users that they are not "interacting with a real human being".
- The disclosure needs to be clear, precise, upfront, and prominent.
How to determine whether a disclosure is required or not?
Criteria to look for-
- Influencers are required to go for disclosure whenever there is any "material connection" between them and the advertiser. This is to make sure that the consumers are not kept in dark with regards to advertising content being created like videos, photos, reels, etc. A disclosure will reveal the substantial link between a particular influencer and the product they are endorsing, thereby allowing the consumer to exercise their minds to buy or not to buy a particular product recommended by the influencer.
- Disclosure is also required to be made when the influencer despite any monetary benefits, is given "anything of value" like the discounted product, or free product for trial, etc. For instance, if an influencer is given some cookies as a free product for trial purposes so that he/ she could promote it better, then the influencer needs to disclose it also amongst the customers. Such type of disclosures is to be made mandatorily even if the influencers are not asked to do so.
- Influencers are required to disclose in those situations also wherein he/ she give their personal views or comments but where there is a "material connection" between them and the advertiser. This happens in those situations where influencers go for their honest reviews on some products like any beauty product, or any edible etc. The disclosure becomes essential here also so that the customers are aware that there is some connection between the influencer and the brand that they are reviewing.
- But, disclosure is not required in those cases wherein the influencers if they like some health drink recommend their followers to buy them or use them. In such cases, there is no material connection between them and the advertiser, and they are recommending a particular product out of their free will. In such cases, it will not be considered as an advertisement.
- A 'material connection' is defined by the Influencer Guidelines as any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer. A material connection could 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 sweepstakes entries, trips or hotel stays, media barters, coverage, awards or any family or employment relationship, etc.
'DUE DILIGENCE' UNDER THE INFLUENCER GUIDELINES
The guidelines also provide for influencers to exercise due diligence while promoting any product. The influencers must research the product that they are promoting or endorsing so that they can substantiate the claims that they would be making in their content. It is a mandatory step to avoid any future liability and also because of the impact that they have on the consumers following them.
The importance of due diligence by the influencer was correctly highlighted by the Bombay High Court in the case of Marico Limited v. Abhijeet Bhansali.7 The Court noted that 'Social media influencers are individuals who have acquired a considerable follower base on social media along with a degree of credibility in their respective space. Depending on the popularity of their field of expertise, their following can range from thousands to even millions of persons. These influencers often employ the goodwill they enjoy amongst their followers/viewers to promote a brand, support a cause or persuade them to do or omit to do an act. Social media influencers are aware of the influence they wield over other audiences and that their statements have a magnified and profound impact on their audience. It would not go far to say that their followers place a certain trust in the social media influencers and accept their statements as facts without much scrutiny. It is apparent, that a social media influencer, wields the power to influence the public mind. With power also comes responsibility. I do not believe that a social media influencer can deliver statements with the same impunity available to an ordinary person. Such a person bears a higher burden to ensure there is a degree of truthfulness in his statements. A social media influencer is not only aware of the impact of his statement but also makes a purposeful attempt to spread his opinion to society / the public.'
IMPACT OF GUIDELINES
Ambika Sharma, Founder and Managing Director, Pulp Strategy, in a statement to a newspaper daily, said that 'The guidelines mean that there is a recognition for the entire industry. Bringing the industry under these guidelines in terms of transparency and accountability will bring in more credibility in what an influencer says.'8 The Influencer Guideline has also garnered support from Influencers. Dolly Singh, a digital influencer, told a newspaper daily "the digital marketing space is growing rapidly and so are its participants. This is the right time to have a codified system of disclosure. I fully support this move by ASCI because it will result in viewers having even greater trust in influencers like me,".9 Shetal Shah, co-founder of TheBagTales in an interview said that 'the latest ASCI guidelines for influencer marketing are a welcome move and will benefit brands. With the influencer marketing industry booming and the audience believing in them, transparency must be maintained. The key idea behind roping or partnering with influencers is to build trust within their network, which in turn will help brands reach out to a larger audience and build their customer base.'10
The need for disclosures under the Influencer Guidelines will prevent the users from falling into the trap and will help them in demarcating between independent user-generated content and promotional content. Also, with only the permitted labels, the influencers will be obliged to not use any other disclosure label so that they cannot later claim that they took necessary precautions and followed all guidelines. Now, since the influencers need to go for those disclosures that are appropriate for the social media platforms, they will also follow the guidelines of the social media channel or platform. These influencers are also entrusted with the responsibility of not using filters to make their skin spotless or teeth whiter while endorsing any beauty products. Further, as a matter of prudence, now both the social media influencers and the advertisers will be more conscious while entering into a contract as both of them have a liability of ensuring that the guidelines are not violated.
However, this is a step in the right direction, there is more that can be done in terms of regulation.
The guidelines only focus on preventing misleading advertisements but do not lay down any specification for intellectual property rights. There should be some provisions for IP rights involved in these advertisements. With the increase in unauthorized use of brand names, there is a need to also protect the goodwill and the interests of brands and individuals involved in social media marketing.
The guidelines also lack in terms of deciding liability in cases the followers' health is affected by any of the products that they use by the recommendation of the influencer. So, it is imperative that either the guidelines specify this or there is some amendment in the guidelines.
Additionally, it should be mentioned that ASCI is not a government-regulated body but only a self-regulatory one. Owing to which its decisions are not binding. However, it is also pertinent to mention here that the Courts have time and again upheld the decisions of the ASCI.
BEST PRACTICES FOR INFLUENCERS TO AVOID ANY LIABILITY
- The disclosure mentioned in the post should be worded in a manner that any layman can understand. Don't just rely on blanket disclosure as individual pieces of content may be viewed in isolation.11
- Team up with brands you genuinely believe in.
- Always ensure that the arrangement between the Advertisers & Influencer is defined by a well-drafted agreement clearly stating the rights and liabilities of both parties.
- Always be genuine in advertising or promoting a product. Do not mislead the consumers.
- Ensure that the information shared with the consumers and in the post is true to the best of your knowledge.
- Before endorsing a product that affects public health and wellness, it is advisable to pay particular attention to what product claims are being made and are the claims are backed by proper and authentic pieces of evidence.12
- Ensure that the advertisement posted does not violate any provisions of the applicable legal regulations.13
- Along with ASCI guidelines, do not forget to always check the rules guidelines of the specific social media portal on which the advertisement is being posted.
READY RECKONER FOR INFLUENCERS
Though these were a part of the Guidelines for "Influencer advertising on digital media"- draft for stakeholder consultation,14 it is pertinent to know about these as well as they can be useful in understanding & placing disclosures on these specific platforms:
- Instagram: Disclosure label to be included in the title above the photo/beginning of the text that shows. If only the image is seen, the image itself must include the label
- Facebook: Include the disclosure label in the title of the entry or post. If only the image/video is seen, the image/video itself must include the label eg FB story
- Twitter: Include the disclosure label or tag at the beginning of the body of the message as a tag
- Pinterest: Include the disclosure label at the beginning of the message.
- YouTube and other video platforms: Include the label in the title/description of the post.
- Vlog: Overlay the disclosure label while talking about the product or service
- Snapchat: Include the disclosure label in the body of the message in the beginning as a tag.
- Blog: Include the disclosure label in the title of the post.
7. COMIP NO. 596 OF 2019, Bombay High Court, Judgement dated 23rd August 2019
Originally published 16 July 2021
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.