As digital media becomes more pervasive and the line between “content” and “advertisement” becomes blurry, the Advertising Standards Council of India (“ASCI”) felt the need to issue guidelines to ensure that consumers are well informed when a product is being promoted by an influencer. On February 25, 2021, it released draft Guidelines for “Influencer advertising on digital media” (“Draft Guidelines”). These Draft Guidelines are presently open for public comments till March 8, 2021 and final guidelines are expected to be released by March 31, 2021.
2. Salient Features
The Draft Guidelines provide new definitions, disclosure requirements, ready reckoners for specific social media platforms and a process for handling complaints by the ASCI. These guidelines will be applicable to all promotional posts published on or after April 15, 2021. The key takeaways are as follows:
2.1 Definition of “Influencer”: An Influencer is defined as a person who has access to an audience and can affect it’s purchasing decisions or opinions about a product, service, brand, etc. due to its authority, knowledge, position, or relationship with the audience. The Influencer must be able to intervene in editorial content or collaborate with the brand to publish content.
2.2 Disclosure Label: A disclosure label (“Label”) is to be mandatorily added by the Influencer/content creator in the post so that the viewer can discern between “advertisement” and “content”. The Draft Guidelines specifically give some Label options which should be with all “advertised” posts. These are: #ad, #collab, #promo, #sponsored, and/ or #partnership. No other Label is allowed.
2.3 Upfront Disclosure: In case of promotional posts, the Label must be present at the start of the description. The consumer must not need to click on anything or scroll down to see the Label. In case of photo /video, the Label must be superimposed over it and in case of audio advertisements, it must be mentioned upfront. Blanket disclosures in the user profile/bio are considered inadequate as people might read individual reviews or watch individual videos without seeing these disclosures.
2.4 Due diligence and use of filters: The Influencers must do their due diligence on any technical/ performance related claims ( 2X better, fastest speed, etc.) by corresponding with the brand owner/ advertiser confirming that the specific claim is capable of being substantiated scientifically. Further, Influencers cannot use filters which could potentially mislead consumers about the product. For examples, they cannot use beauty filters when promoting cosmetics. Lastly, the Draft Guidelines also recommend that contractual agreements between Influencers and advertisers contain clauses pertaining to disclosure, use of filters as well as due diligence.
2.5 ASCI Complaint Handling: In case of any violation, the Draft Guidelines state that ASCI can suo motu or on the basis of consumer complaint issue notice to both, the brand owner and Influencer. It also clarified that for disappearing posts (like Instagram and Facebook stories, etc.) a screenshot with timestamp will suffice as prima-facie evidence of the post.
The Draft Guidelines recognise the need to clearly define players in digital media advertising and their duty towards unsuspecting consumers. They distinguish Influencers from fan accounts and models as Influencers are likely to be paid in cash or kind and are expected to have some editorial control over their content. Since Influencers can affect the purchasing choices of their viewers, it is only fitting that some guidelines be placed to ensure that advertisement claims are verified. That said, some restrictions like not using filters could be considered unfair when compared to television and print advertisements where the content can be airbrushed/photoshopped even for cosmetic products.