The rampant rise of social media influencers has drastically changed the advertising landscape in India. The paradigm of content consumption in India, once steered by traditional celebrities, is now observing a shift towards social media influencers, who may have a smaller but highly interactive audience.
The Advertising Standards Council of India (“ASCI”) plays an indispensable part in shaping standards of ethics in advertising industry. The ASCI, established in the year 1985, ensures that advertisement its Code for Self-Regulation. This code is hinged on four principles – (i) truthful and honest representation, (ii) non-offensive to public, (iii) against harmful products and situations, and (iv) fair in competition.
Eventually, this shift has turned to be a persuasive power in forming consumer preferences and influencing purchasing decisions with a single social media post. Considering these circumstances, ASCI has expanded its role to include regulations for influencer marketing. Its Guidelines for Influencer Advertising in Digital Media (‘Guidelines’) help consumers recognize when content is sponsored, ensuring transparency and authenticity in promotional material. These Guidelines aim to uphold ethical practices in influencer marketing and protect consumers from misleading advertising.
The ASCI, in the Guidelines, defined the term “influencer” 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.” The core principle of the Guidelines is the principle of disclosure. This ensures that consumers are aware of potential biases and can make informed decisions based on genuine endorsements rather than undisclosed promotions. The key tenets of the Guidelines are pivoted around the following requirements:
i. Disclosure of Commercial Relationships - The underlying purpose of this disclosure is double-edged, one is to inform consumers about the commercial nature of the content they are consuming, thereby prompting them to make informed decisions, and the other one is to enable influencers to mitigate the risk of consumer confusion or deception.
ii. Identification of Advertised Content - Influencers are required to label promotional, sponsored, or collaborative content with clear disclosures in the relevant language. This will help to distinguish between organic and incentivized content, which will help the consumer to make informed decisions.
iii. Accuracy of the Advertised Content - The influencers are expected to verify their claims made through testing or confirming product/service details, to ensure accuracy and credibility.
Tailored Guidelines for Health and Financial Influencers – These specific guidelines demand influencers to have mandated qualifications or certifications to promote related goods and services.
Moreover, in case of any concern raise by consumer or identify by ASCI, the ASCI will issue notices to both the brand owner and the influencer. Given that the ASCI is a self-regulatory body, any violation will be governed by the Consumer Protection Act, 2019, which stipulates a penalty in the form of imprisonment for a term up to two years and a fine up to INR 10,00,000 (ten lakh rupees) for making a false or misleading advertisement.
The key driving factor of the Guidelines is the need to protect consumers from deceptive advertising practices, which underscore the importance of ethical considerations in influencer marketing. Amidst the lucrative collaborations and sponsored content, ethical considerations stand as the foundation of responsible and transparent influencer marketing. By adhering to the Guidelines outlined above, influencers not only uphold their credibility but also empower audiences to make informed choices, fostering trust in the influencer-brand-consumer relationship.
Influencers are also expected to exercise diligence in ensuring that the information they disseminate is accurate and reliable. Whether endorsing skincare products, fashion brands, or lifestyle services, influencers bear a responsibility to uphold the integrity of their recommendations. In fact, ethical considerations extend beyond mere compliance with the Guidelines. Influencers are urged to exercise caution and sensitivity in their content, refraining from endorsing products or messages that could potentially harm or mislead their consumers. The Guidelines have raised awareness about ethical considerations within the influencer community. Influencers are now more cognizant of their responsibilities towards their audience and the brands they collaborate with. This has resulted in a more conscientious approach to content creation, with influencers striving to uphold integrity and professionalism in their workspace.
Moreover, the discussion on the Guidelines is no longer confined to the realm of advertising ethics but has also transcended in the domain of intellectual property law in India. Influencers, in their efforts to comply with the Guidelines, are now more cautious about the content they create and share. This amplified caution extends to ensuring that their content does not infringe upon any copyrights held by third-parties. The influencers are mitigating the risk of facing legal repercussions for infringement, by obtaining valid licenses for the use of copyrighted materials. Additionally, influencers are advised to exercise caution when referencing or displaying trade marks belonging to brands in their content, which includes avoiding any unauthorized use of trade marks that could potentially mislead consumers or imply an endorsement that does not exist. By adhering to the Guidelines, influencers contribute to maintaining the integrity and exclusivity of trade marks while curtailing the risk of trade mark infringement claims. Clear disclosures of sponsored content help distinguish between genuine endorsements and advertised content, thereby safeguarding the reliability of brands and their trade marks.
In addition, in June 2022, the Central Consumer Protection Authority (“CCPA”) notified the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022, in order to strengthen the enforcement of various parameters outlined in the ASCI’s Guidelines for Influencer Advertising in Digital Media. This alignment underscores significant overlap between the provisions of both sets of guidelines. Essentially, the guidelines notified by the CCPA specify certain duties for manufacturers, service providers, advertisers, and advertising agencies, with an underlying drive to ensure that the advertised claims are evaluated, substantiated, verified, or supported with relevant data, and which may require to be corroborated with evidence, upon CCPA’s direction. These guidelines are additionally responsible for ensuring that advertisements are not directed to individuals and entities in a manner that is disreputable and sardonic, unless appropriate permissions have been secured. This is especially relevant in comparative advertisements, where products from various manufacturers are juxtaposed to emphasize the strengths of one product over another.
The guidelines notified by the CCPA are expected to significantly restrict advertisers, potentially limiting their ability to manoeuvre within ambiguous areas when developing and releasing advertisements and represent a significant step forward in the regulatory oversight of advertisements, which previously relied heavily on self-regulation under the ASCI Code.
In conclusion, the implementation of the Guidelines in India has ushered in a pivotal shift towards responsible digital content creation and consumption. Through stringent regulations and ethical standards, influencers are now enabled to swing their influence responsibly, fostering transparency, credibility, and authenticity in the digital landscape. This not only enhances consumer trust but also promotes a healthier online environment conducive to informed decision-making. As India's influencer industry continues to burgeon, adherence to these guidelines serves as a beacon, guiding influencers towards a future where integrity and accountability hold utmost importance, ultimately shaping a more conscientious and sustainable digital ecosystem for the community.
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