- Apprentice Lawyer
With the emergence and widespread penetration of social media, digital marketing has taken a whole new turn today. Brands are increasingly finding themselves in a position where traditional marketing strategies are not adequate to reach and influence the target audience anymore and therefore, digital marketing has become the new advertising cornerstone.
Social media influencers are the new phenomenon in this constantly evolving world of digital media and marketing, where the public at large are looking up to social media to guide them with their decision making in terms of product/brand/service selection. Viewing how the consumers are relying on social media influencers and in order to safeguard the consumers’ interests, the Advertising Standards Council of India (“ASCI”) has issued draft guidelines for influencers and for the influencer marketing community at large in relation to all posts and video contents put up on social media applications/websites (“Guidelines”).
The Guidelines provide an open-ended definition of the term 'digital media'. a wide range of platforms are covered within the ambit of ‘digital media’, such as any sponsored posts, branded content, in-gaming ads, advergames, gamification content, video-on-demand/free video platforms, and mobile broadcasts, blogs, apps, digital TV, etc.
These Guidelines, therefore, will not only help consumers but also guide social media influencers to become more responsible with respect to the content posted by them. Upon notification of the final guidelines by ASCI, the final guidelines will come into force.
A brief summary of the draft Guidelines in relation to advertising standards for social media influencers is encapsulated hereinbelow:
(a) The term ‘advertisement’ has been defined as an ad which is a sponsored/paid communication targeted at the public to influence their behaviour and/or opinion. It shall also include any content that may or may not be recognized as an ad but is owned or authorised by an advertiser or a brand owner. Therefore, a disclosure label is required to be added from a list of approved labels i.e., #ad #collab #promo #sponsorship and #partnership. The underlying principle behind having a set of pre-determined disclosure labels is to avoid confusion and the creative ways in which advertisers and influencers may wish to convey that the said communication is an advertisement or paid content and not personal.
(b) ‘Influencer’ has been defined as someone who has access to an audience with the power to affect the audience's purchasing decisions or opinions about a product, service, brand or experience. As per this definition, an influencer can also intervene in an editorial context or in collaboration with a brand to publish content, which is non-exhaustive, and can be interpreted as someone who may not be creating any content for a brand.
(c) The Guidelines have also established a link between advertisement and influencer. For an advertisement performed by an influencer, there should be a material connection/ payment involved. The term 'Material Connection' could take the form of free products, trips or hotel stays, media barters, or awards – handed out by an advertiser to an influencer. Such an overarching connotation of consideration of definitely the need of the hour and takes into cognisance the varied forms of payment mechanisms that may create conflict of interest for the influencers.
(d) Advertisements must contain mandatory disclosures label (from the list of pre-approved labels as mentioned in point (a) above), which should be attached to all promotional posts/advertising content.
(e) The disclosure label should be upfront and should appear 'within the first two lines' of any ad related content so that the users do not have to click on 'see more' or 'scroll under the fold' to figure out if the content is in fact a promotional post. The disclosure label must be in English or translated into the language of the advertisement in a way that it is well understood by the average consumer who is viewing the advertisement.
Blanket disclosures in a profile/bio/about section will not be considered adequate as people visiting the site might read individual reviews or watch individual videos without seeing the disclosure on another page.
(f) The disclosures are to be placed in a picture post or a video, posted by the influencer.
i. Where the advertisement is only a picture post, the label must be clearly superimposed over the picture.
ii. Where the advertisement is only a video there are different time limits for displaying the disclosure label added to the advertising content:
Video less than 15 seconds – Minimum 2 seconds
Video duration between 15 seconds and 2 minutes - the disclosure label should appear for 1/3rd the length of the video
Video duration is more than 2 minutes - the disclosure label should appear for the entire duration of the section in which the brand is promoted
In the event of a live streaming - the disclosure label should be placed periodically (for 5 seconds) at the end of every minute.
iii. Where the advertisement is in the form of an audio, disclosure label should be clearly announced at the beginning and at the end.
(g) The Guidelines also prescribe that the influencers would not be allowed to add filters to enhance or exaggerate the effect of the claim that the brand is making of the advertised products.
(h) The influencer must also do their due diligence about any technical or performance claims made by them for a product, such as 2X better, the effect lasts for one-month, fastest speed, best in class etc.
JURISDICTION OF ASCI
As ASCI is a non-governmental body, the question arises as to whether rules/guidelines published by ASCI will need to followed by advertisers or not. Supreme Court has upheld the jurisdiction and authority of ASCI in multiple cases. In the matter of Common Cause (A Regd. Society) Vs. Union of India and Ors. (January 2017), the Hon’ble Supreme Court affirmed and recognized the self-regulatory mechanism put in place for advertising content by ASCI. However, in the matter of Procter and Gamble Home Products Private Limited vs. Hindustan Unilever Ltd. (January 2017), the Delhi High Court has held that the ASCI has been established as a self-regulatory body in the field of advertising and not for dispute resolution or for resolution of claims. Although, the ASCI have a Consumer Complaint Committee, the purpose of the same is only to 'self-regulate'. The ASCI, even if it finds merit in a complaint, can only recommend the advertiser to remove the advertisement but has no mechanism to compel removal of the advertisement or to grant any interim relief or to award damages.
If there a breach of the Guidelines, pursuant to which the Central Government issues a notification for false and misleading advertisement under Section 21, (Power of Central Authority to issue directions and penalties against false or misleading advertisements) of the Consumer Protection Act, 2019, a penalty in the form of imprisonment for a term up to 3 (three) years and a fine up to INR 10,00,000 (Ten Lakh Rupees) may be imposed.
In addition to the Guidelines, ASCI has also provided a directory with respect to the disclosures to be displayed on all content displayed on the following websites/applications:
(a) 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
(b) Facebook: The disclosure label should be included in the title of the entry or post. If only the image/video is seen, the image/video itself must include the label e.g. FB story
(c) Twitter: The disclosure label should be included or tagged at the beginning of the body of the message as a tag.
(d) Pinterest: The disclosure label should be included at the beginning of the message.
(e) YouTube and other video platforms: The disclosure label should be included in the title / description of the post.
(f) Vlog: The disclosure label should be included overlayed while talking about the product or service
(g) Snapchat: The disclosure label should be included in the body of the message in the beginning as a tag.
(h) Blog: The disclosure label should be included in the title of the post.
The Guidelines are definitely required in order to regulate advertisement content on social media platforms and to protect consumers from misleading and deceiving advertisements and posts. It would also ensure that the audience is aware of whether the post they are viewing, are paid promotion or natural/personal post by an influencer. In a world where the divisions between personal and commercial content are increasingly dissolving, the consumers deserve to know the basis on which their purchase decisions are taken. The Guidelines therefore are much needed for enabling consumers to have fair choice and to take informed decision.
The authors are Founder Partner, Archana Khosla Burman; Associate Partner, Sohini Mandal; and Associate, Shagun Rathi at Vertices Partners.