The Advertising Standards Council of India (ASCI) was established in 1985. It is a self- regulatory body and ensures the protection of the interests of consumers, aiming to maintain and increase confidence of the public in advertising. ASCI’s final guidelines have been released and came into effect from 14th June 2021. These new guidelines will make it compulsory for the labelling of the promotional content the influencers post. Like, for any audio content that doesn’t have a description, there should be a clear disclosure made at the beginning and the end of the audio content. 

In BW Legal World Saturday Solutions weekly webinar an esteemed panel of lawyers decoded the ASCI guidelines for influencer advertising on Digital Media. The discussion commenced with the basic question: 

Who is an influencer? 

An influencer is anyone 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.’As per the ASCI guidelines there’s no minimum threshold of followers required to be identified as an influencer. However, this definition isn’t universal. In the UK, the Advertising Standards Authority has declared only someone with minimum 30,000 followers as a celebrity. Whereas, in India there is no such threshold. Anyone can be a celebrity, can be an influencer and will have the onus and the responsibility under these guidelines says Ms. Chandrima Mitra, Partner, DSK Legal. 

Difference between Defamation and Disparagement

Defamation relates to the reputation of a person while disparagement is known as the slander of goods/ slander of property. So, it relates to defamation of property and not the person. The three specific requirements for disparagement are: 

• There should be misrepresentation
• Should be published maliciously 
• Should have resulted in special damage 

Furthermore, the law of disparagement is an action in Tort and you don’t need to take statutory recourse, it is a right available to an entity whose goods have been disparaged remarked Mr. Nishad Nadkarni, Partner, Khaitan & Co.           

Influencers hold a Social Responsibility   

With power comes responsibility. One should have a sense of ethics and morals when introducing a product to the audience. 

To this, Ms. Latha R Nair, Partner, K&S Partners added, in Justice Kathawalla’s judgment in Marico Limited vs Abhijeet Bhansali case, Justice Kathawalla said that social media influencer cannot deliver statements with the same impunity available to an ordinary person. In this case, Abhijeet Bhansali compared Parachute coconut oil with virgin coconut oil to prove that parachute oil was not of good quality. As the case of the Division Bench of the Bombay High Court  is in appeal right now, more would be clear once the Supreme Court decides on the matter added a panelist.

Material Connection and the importance of Disclosure Labels 

While discussing the Material Connection Test given in the guidelines, Ms. Firdouse Qutb Wani, Managing Partner, L.C.Z.F Law Firm said that a connection between an influencer and the advertiser is known as the material connection. So, if there is a material connection then it’s important to have disclosure labels. In the ASCI guidelines, it is especially mentioned, in case the story is for 15 seconds one will be required to put a disclosure label stating whether it is an advertisement or  sponsored content for a minimum of 3 seconds. This is to ensure that the person viewing the story is actually able to see it, it should not be in a hidden form. 

Moreover, disclosure labels provide transparency and honesty, which is appreciated by the public. 

The Consumer Protection Act 

Consumer Protection Act is to safeguard the public against unfair practices in the marketplace. The Central Consumer Protection Authority (CCPA), protects and enforces the rights of the consumers.

Ms. Savitha K Jagadeesan, Senior Resident Partner, Kochhar & Co. mentioned in 2019, certain key changes came into the Consumer Protection Act (CPA) that has lent more clarification to aspects of what an advertisement is, what an endorsement is. The endorser or the advertiser requires to conduct due diligence and see that the product being put up there matches whatever is being represented. Even, per the ASCI guidelines, apart from the disclosures discussed above, influencers are required to carry out their own due diligence. This means they need to review the product and ascertain for themselves that the advertiser is capable of substantiating the claims made in an advertisement, under the Guidelines.

To summarise, influencers do have a social responsibility because of the impact that they have on the public. Also, we should move from self- regulatory body to a more credible body to make ASCI more effective. In the meantime, let’s just say one should think before posting out on the social media. And the consumers should exercise caution when they see some tall claims on digital media—Caveat Lector—Let the reader beware. 

Here is the link to the webinar: https://fb.watch/6vLvKju7mr/

The booming global influencer market size currently stands at an estimated $13.8 billion USD. There has been a marked shift in how the industry is looking at Advertising through Social Media Influencers and the pandemic has further given a shot in the arm to Social Media engagements, not to mention a popular celebrity status to Influencers. As Guidelines for Influencer Advertising on Digital Media came to light and became applicable for all posts published by influencers post 14th June 2021, our august panel, comprising of Ms Chandrima Mitra, expert in Media and Entertainment Laws, and Partner at DSK Legal; Ms Firdouse Qutb Wani, Advocate-on-Record at Supreme Court of India and Managing Partner of  L.C.Z.F Law Firm, an expert in IPR Litigation and many other disciplines; Ms Latha R Nair, Partner and Chair of Trademarks Practice at  K&S Partners; Mr Nishad Nadkarni, Partner with IP practice of Khaitan & Co; and Ms Savitha K Jagadeesan, Senior Resident Partner at Kochhar & Co, leading the firm’s IP Practice group in South India helped us understand what are some of the good practices, laws, and stipulations that Influencers, Advertisers and Brands need to know about. The session was moderated by Dr Annurag Batra, Chairman and Editor-in-chief of BW Businessworld, and exchange4media groups along with Ashima Ohri, Managing Editor, BW Legal World.