This article is written by Kashish Khattar, an advocate based in New Delhi.

Introduction

“With great influence, comes great responsibility.”

According to Livemint, the influencer marketing industry is now worth around seventy to one hundred and fifty million dollars, the pie is indeed big. 

Influencer marketing has brought independence and incentive to creativity in a country like India. The advent of digital platforms and cheap internet has given rise to small, nano, and even micro-influencers who have a niche following. It does not matter how they gain popularity, it could be beauty, healthcare, lifestyle, self-help, food, sport, or even gaming! In short, originality, creativity, and authenticity are sold.

The need for a robust regulation in this space is because of the blurred lines between organic and paid content. Users or followers don’t know if the product which is being suggested by their favorite influencer is their personal opinion or that someone is paying them to say it. Influencer marketing has become one of the key marketing strategies of digital marketing in this hyper-connected world. With big monies being invested in this strategy, it was only a matter of time that a set of regulations were needed. The Advertising Council of India released a set of draft guidelines to regulate influencer marketing in the industry. 

The final guidelines are set to be issued by 31st March 2021. They are set to go in effect from 15th April 2021. The forthcoming intent that the guidelines advocate is that the interests of the consumers should be protected and a set of rules for industry best practices be defined.

Who is an influencer as per these guidelines? 

An influencer is someone who has access to an audience and the power to influence their purchasing decisions. This includes changing their opinion about a product, service, brand, or experience. This becomes possible due to the influencer’s power, knowledge, authority, or relationship with their audience. An influencer can intervene in an editorial context or in collaboration with a brand to publish content. 

According to the guidelines, there has to be a disclosure label to highlight the advertised content on the platform. An advertisement according to these guidelines is a paid-for communication addressed to a section of the public for the purpose of influencing their opinions or behavior to whom they are addressed. 

This responsibility will be on the influencer and the advertiser. The label options would include #ad; #collab; #promo; #sponsorship; and #partnership. 

Furthermore, the disclosure label will have to highlight advertising content upfront by writing the first two lines when they post such paid content. The disclosure label has to be in English or any other language which is well understood by the average consumer who is viewing the advertisement. Blanket disclosure won’t work on the top of the influencer’s page and have to be present on every post or video. In the case of stories, the disclosure has to be superimposed over the picture. 

In the case of audio, the disclosure label has to be announced at the beginning and the end of the clip. No kind of filters will be applied to exaggerate the claim that the brand is making. Such as shinier hair or whiter teeth etc. The influencer should also do their due diligence about the technical, performance claims made by the products, and evidence of such claims should be present. 

Furthermore, a contractual agreement between the advertiser and influencer should have claims regarding disclosure, use of filters, and due diligence. 

Impact of these guidelines

The guidelines make sure that they make the advertiser and the influencer accountable and transparent to some extent. The complaint handling of the guidelines would make sure of that aspect. ASCI can issue a notice to both the brand owner and influencer for the violation of the guidelines in the case of a consumer complaint or take action on its own in certain cases. 

The guidelines are surely going to have a lasting impact on the digital media influencers that we have in the country today. They will have to change how they post content that actually gets them paid. These guidelines increase the compliance, scrutiny of every product that an influencer would post now. I like to call it responsible posting behavior. It would be easier for the council to regulate the big players, why would a Bollywood star with millions of followers try to flout these regulations? 

The challenge is with the influencers who have a niche or a small following. This is where the need to regulate will protect people from the adverse effects of excessive or false advertising. It would be good to understand how the council shores up the resources to regulate the small players. 

Thinking about social media platforms, Facebook-owned Instagram already has a disclosure tool that potentially should take care of compliance with all the guidelines. It would be interesting to see how social media platforms other than Instagram acclimatize to these guidelines. 

How can influencers comply?

The influencer now has a statutory responsibility of doing a well-rounded background check on the product they want to associate themselves with. 

Further, they will have to make sure that the sponsored content does not violate any kind of legal regulations that are notified. 

The opinion about a product or a service should state and show an authentic opinion. The generalizing of the product for the users should be avoided at all costs. They will have to start complying with these guidelines from the 15th of April 2021. 

The influencers should mandatorily have a written contract with the brand about the kind of collaboration they have to protect their interests. The contracts help the parties identify their rights and liabilities. 

Disclosure of paid posts is mandatory now, usage of #ad; #sponsored; #collab; #sponsorship and #partnership. Claims made by the products need to be scrutinized before sharing them with the public. 

Talking about punishment, the regulations do not mention any kind of liability but the newly enacted Consumer Protection Act of 2019 states that penalty for making a false or misleading advertisement could be liable to up to 2 years of imprisonment or a fine of up to 10 lakh rupees (INR 10,00,000). Violating these guidelines will potentially mean that the influencer is liable under the consumer protection law. 

Comment 

India has come a long way from the “Jago Grahak Jago” jingle in terms of consumer awareness and protection. In my opinion, looking at the ASCI guidelines, they are fun and very easy to read. ASCI provided the influencers, who are the main complying parties with a presentation. I am quite excited to wonder, how the collaboration between the regulators and the regulated entities could be quite so easy in a country known for its license raj hangovers. 

The draft guidelines showcase one main intent for sure, that influencers should be made accountable for what they are potentially posting on their feeds. In my opinion, these are also another set of guidelines on social media etiquette that we are seeing in the country. 

These draft guidelines are comprehensive but would need a lot of clarification as and when they get enforced for all the stakeholders involved. It would be interesting to see how influencers curate sponsored content to the masses now.

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