Author: Vanisha Mishra
Institute of Law, Delhi
Influencers, in layman’s language, are the people, who hold the capacity to influence people, over the digital platforms. Influencers on these platforms receive their validity from the general public and are often much adored and respected. People follow whatever is being fed to them, also, several fashion and trends are created by the influencers, using their position, to gather a huge public base, and earning out of such popularity. The advertisements put up by these influencers may appear as a genuine promotion or may deliberately be made to look so, as a result, viewers get increasingly mislead, due to a lack of sources to get genuine information from. They tend to use the products or services which their internet influencer is using.
Thus, our regulatory system requires to ensure that such people who are advertising any sort of thing, because they have a wider reach to people and a lot of emotional appeal value, they don’t mis utilize such popularity and following by solely taking care of their interests and shedding of the responsibility which they hold due to their influential position. The guidelines laid down by the ASCI in 2021, end to ensure strict mechanisms through which, there’s greater transparency and the viewers get knowledge, so that they may be able to distinguish between genuine promotions and paid advertisements.
Rules for advertising over social media platforms has been laid down by the Advertising Standards Council of India (ASCI), setting up some basic requirements and ground rules to ensure ethical advertising. It tends to regulate such influencers, who advertise or promote any brand or product, by explicitly disclosing the promotional nature of the post/content using labels like, #promo, #sponsored, #partnership or #ad, etc. These draft guidelines also encompass the definition of digital media, wherein, a wide range of platforms are covered within the remit of digital media, e.g., mobile broadcasts, blogs, apps, digital TV, etc.
Need of these regulations:
Influencers are individuals who have the ability to influence others across these channels. The public validates such influencers, and they are often adored and revered. People follow whatever is fed to them, and they often generate many fashion and trends, using their position to attract a large audience and profit from it. The lifestyle of these influencers is considered as an ideal by people, and consequentially, this model lifestyle becomes a dream of the followers, which has to be achieved to be acceptable in society, which is already full of trends. Thus, to gain validity, people, nowadays, tend to follow the influencers of their choice. From following their lifestyle to copying the type of clothes they wear, there’s a great frenzy in people to become like that one model/ ideal person. Moreover, people get recognized by their peers and friends for doing such a thing, as this is commonly attributed to the achievement of a “status” in the society. This motivates people to go a further extent and trust the influencers they’re following and that, such influencers are promoting the right product or services, which they seem to use. Now that, a person aims is to follow exactly what the influencer is doing, it’s difficult to distinguish between what is real and what is just an advertisement. In this case, it leads to unethical promotion, as the influencer themselves is not using that product, however, urges their followers to use it, not out of any genuine concern, but for the sake of advertisement, irrespective of any genuine relationship with those products and services. This misleads the viewers into assuming that it is a genuine promotion.
Effect of such misleading advertisements on viewers
Since the advertisements may appear as a genuine promotion or may deliberately be made to look so, viewers get increasingly mislead, due to a lack of sources to get genuine information from. They tend to use the products or services which their internet influencer is using. This, first of all, maybe resultantly harmful for general public, as, when influencers advertise anything, they do not set out any warning or the possible harm that particular product may cause to some people, because they are not aware of such limitations, since they do not use it. Thus, the possible harms caused to the public maybe all the more probable, because of, the blind belief and bias associated with the product, and lack of awareness about the same.
This also affects the choice of the people. A simple test to prove this would be had people chosen the product or service if the advertisement wasn’t there. This gives out a straight- forward result that a person’s willingness to buy the particular product has been there just because of the usage by an influencer. Thus, in case the product is not the one used by the influencers; it leads to a fabricated choice by making them buy what they believe the influencer must use. Hence, there’s also a large amount of ambiguousness among the general public, in case such advertisement content is not expressly stated.
There are several instances of such ads, e.g. –
The Maggi noodle debate is in all likelihood perhaps the greatest one to hit a mainstream food industry. While the ads guaranteed the noodle to be a good and inexpensive food alternative for youngsters, Maggi tests gathered from various states found monosodium glutamate (MSG) which were in overabundance, exceeding the prescribed limit in the noodles. In this case, an FIR was also lodged against celebrities and influencers like Madhuri Dixit, Amitabh Bachchan and Preity Zinta for acting in these advertisements, and making them sound safe for public use.
Horlicks: The health drink brand has claimed to make youngsters taller, more concentrated and keener altogether its advertisements. An objection was documented against Horlicks for one of its promotions which said that Horlicks improves concentration, and along these lines can help students score better during tests. The complaint expressed that there was no proof that the wellbeing drink could do this, and by focusing on the test season, the organization was utilizing individuals' vulnerabilities to sell their item product. This advertisement was being carried on by celebrities like Amitabh Bachchan.
Harmful effects of misleading advertisements –
For understanding the possible effects, which such misleading advertisements could have on the general public, we need to take into consideration the kind of relation between influencers and viewers.
It is a kind of relationship where, the viewers consider influencers as an authority and tend to follow them, to gain validity from society. In this position, influencers are kept at a higher pedestal and thus, they have the capability of influencing the trends. It’s the influencers, who decide what should mass follow, the practices that they should adopt, the content they should come across to bring about the desired impact. Thus, the influential capacity is extremely large, which creates a burden on them to ensure that the thing they are promoting or advertising has the desired impact on the viewers, since, such an impact could be of intense gravity. Moreover, it is also important for our regulatory system to ensure that such people who are advertising any sort of thing, just because they have a wider reach to people and a lot of emotional appeal value, they don’t mis utilize such popularity and following by solely taking care of their interests and shedding of the responsibility which they hold due to their influential position. Such regulations are also important to enforce the proper way of conduct and accountability on the part of influencers too. Moreover, such regulations impose greater control over a major stakeholder of this marketing, which are the advertisement companies, who desire such foul play and misleading advertisements to go around the internet as it directly increases their profits. Hence, such a mechanism of strict rules will bring about an all-rounded change, as discussed further.
What do the regulations seek to enforce –
• Disclosure label to certify an ad: The guidelines prescribe that a disclosure label (from the list of pre-approved labels) should be attached to all promotional posts/advertising content.
This mark should be prominently displayed. It should appear ‘within the first two lines' of any ad-related material so that users don't have to click on ‘see more' or ‘scroll below the fold' to figure out whether the content is a promotional message. To ensure uniformity and prevent confusion caused by the use of innovative labels that each consumer does not understand, the guidelines also defined a set of pre-approved disclosure labels.
• Features of a disclosure label: The label should be –
(a) ‘prominent’ (so that it catches the eye of the users),
(b) ‘appropriate’ for the platform used to promote a product or a service,
(c) ‘visible’ regardless of the device (laptop/mobile device) or platform (app/website) used, and
(d) displayed in English or any language that the typical users viewing the advertisement would understand. Blanket disclosures during a profile/bio section wouldn't qualify as adequate disclosure under the rules.
• Labels for ‘picture only' and ‘video only' content include: The disclosure mark should be ‘superimposed over the image' for advertising content shared through ‘Instagram stories or Snapchat,' according to the guidelines, to ensure that users are ready to ‘see it clearly.'. If the promotional video isn't accompanied by a caption or text, the mark should be "superimposed on the video in a way that is clearly recognisable to the audience."
• Disclosure in case of audio content: For audio content, the label should be clearly announced at the beginning and at the end of the post.
• For a disclosure mark on ‘video only' material, the duration of presence is: Different time limits are defined in the guidelines for showing the disclosure mark that has been applied to the advertisement material. For long-duration videos –
(a) for 15 seconds or lesser, the disclosure label should appear for a minimum of two seconds;
(b) longer than 15 seconds but lesser than 2 minutes, the label should appear for ‘1/3rd the length of the video’,
(c) The label should be visible for the entire length of the video segment where the advertised brand or its features/benefits are highlighted, which should be at least two minutes. Additionally, for live-streamed material, the disclosure mark should be put at the top of each minute (for 5 seconds).
• Disclosure in case of audio media: For audio content, the label should be clearly announced at the beginning and the end of the post.
• Prohibition on the use of filters: ‘Filters’ available on social media platforms should not be applied to advertising content if they would exaggerate the impact of the claim made by a brand. To put it in perspective influencers wouldn't be ready to use filters that cause overstating a brand’s claim.
• Influencers' due diligence obligations: The rules require influencers to pursue a "due diligence" analysis into any technological or performance claims made by marketers. A letter from the advertiser/brand owner stating that these claims are worthy of "scientific substantiation" is proof of due diligence.Furthermore, the rules suggest that provisions relating to "disclosure, use of filters, and due diligence" be included in the contract between the advertiser and the influencer. These due-diligence responsibilities acknowledge influencers' duty to ensure that, as a result of their authority/influence, their audience is not misinformed about a specific product, service, or brand.
Consequences of non-compliance:
While a vast majority of entities follow ASCI’s guidelines and recommendations, an entity may choose to not abide by them as ASCI is not a governmental body. However, the Consumer Protection Act, 2019 seeks to enforce a penalty in the form of imprisonment for a term up to 2 (two) years and a fine up to INR 10,00,000 (Rupees Ten Lakhs Only) for making a false or misleading advertisement. As ASCI plays an additional role in curbing false and misleading advertisements, abiding by the guidelines will prevent any liability arising out of the advertisements, under the Consumer Protection Act, 2019.
If efficient use of such regulations is carried on, malpractices followed at digital media platforms would be substantially reduced Hopefully, it’ll enforce accountability on both the advertisement agencies and the influencers. Moreover, the public at large would be able to trust their influencers easily, when they know that there’s an efficient system to keep in check the misleading advertisements. Also, due to the progressiveness and well-rounded structure of these regulations, even layman would be able to understand the reasoning behind such guidelines and their implications.
Thus, Advertising rules for internet influencers, 2021, will ensure stricter mechanisms to deal with the current problems faced due to ineffective and redundant mechanisms. Also, it’ll give more clarity to each and every stakeholder as discussed above, and that is the reason why, these guidelines are so essential and will do the needful.
Ø The Consumer Protection Act, 2019
 Advertising Standards Council of India  Advertising Rules For Internet Influencers 2021  a2019-35.pdf (indiacode.nic.in)