116 B, Mittal Towers, Nariman Point, Mumbai, India

Introduction
We live in a world where our thumbs scroll height equivalent to that of Mount Everest each year!

With the easy and inexpensive availability of the internet, advertisers have seen the inevitable escalation in the consumer engagement through social media marketing. In fact, the majority of the brands and advertisers are plunging into the rewarding world of social media marketing rather than the conventional and traditional methods of advertising.

Over the last few years, one of the most sought-after strategies followed by brands and advertisers for reaching out to the target customers is to collaborate with influencers for promotions on the social media platforms. Ranging from massive international brands to humble homegrown labels, advertisers have enormously capitalized solely on the popularity and the number of followers influencers have to their name. The influence of influencers has flourished in the yesteryears and is bound to expand in the coming years. According to Adlift, a digital marketing agency, India’s influencer marketing industry is valued at a whopping $75- $150 Million per year as against the global market of $1.75 Billion.

Influencers have a great impact on the buying choices of a technologically educated consumer and hence, it is of absolute necessity to streamline and regulate the advertising marketing space to promote responsible advertising.

What is Digital Media?
According to the Advertising Standards Council of India (ASCI), Digital Media includes but is not limited to:
  • Internet (advergames, branded content, sponsored posts, promotional blogs, paid-for links, gamification, in-game advertising, teasers, viral advertising, augmented reality, native advertising, influencers, connected devices etc.);
  • On-demand across platforms including Near Video On Demand, Subscription Video On Demand, Near Movie On Demand, Free Video On-Demand, Transactional Video On Demand, Advertising video on demand, Pay Per View,Video On Demand etc.;
  • Mobile broadcast, mobile, communications content, websites, apps, blogs etc. Digital TV (including Digital Video broadcasting Handheld and terrestrial) etc. NSTV (non-standard television) DDHE (digital delivery home entertainment) DTT (Digital terrestrial television).
     
Who is an influencer?
According to ASCI, “An Influencer is someone who has access to an audience and the power to affect their audience's purchasing decisions or opinions about a product, service, brand or experience, because of the Influencer's authority, knowledge, position, or relationship with their audience, an Influencer can intervene in an editorial context or in collaboration with a brand to publish content”.

Long gone are the days when the consumer wanted an “expert” opinion, now everyone wants to try out the products or services that are hyped on Instagram or TikTok by influencers. Social media influencers may range from celebrities to cult industry bloggers to popular YouTubers with strikingly impressive follower counts.

ASCI Guidelines for Influencers1
With social media marketing being hailed as the new go-to for every brand and advertiser, ASCI, released draft guidelines for influencer advertising on digital media to safeguard the interest of consumers all across the nation with the aim of enabling them to easily recognize promotional content that might have been passing off under the facade of harmless social media engagement and to create a rather regulated environment in relation to the social media marketing in India. In order to ensure the best interests of the consumer community as a whole, these rules are not just limited to influencers, but shall also apply to marketing agencies, media houses, and PR companies.

The Guidelines for “Influencers advertising on digital media” were made available for stakeholder consultation.

Disclosure Label Options:
ASCI specifically addresses that the disclosure of any “material connection” between the influencer and the brand or advertiser engaging them for the purpose of digital marketing should be distinct and conspicuous. ASCI further acknowledges “material connection” to be any connection with or consideration given by an entity (advertiser) to an endorser (influencer) to make a representation that may, in turn, affect the weight of the representation in the eyes of the consumers that could include but is not limited to free products, hotel stays, trips, media coverage etc. with the expectation of a promotion or inclusion of the advertiser’s products in a post occurring immediately or eventually.

Five disclosure label options as laid down by ASCI are: (i) #ad; (ii) #collab; (iii) #promo; (iv) #sponsored; and (v) #partnership.

ASCI has further clarified that no other labels/ hashtags shall be used by the influencer as the consumers might not be aware of the short-forms or abbreviations of the same. ASCI added that the list will be periodically revised to add any new labels that become popular or recognized by an average consumer as a way to connote promotional communication.

ASCI Guidelines:
  1. Conspicuous Disclosure: Advertisements must be demonstrably and obviously distinguishable by the average consumer from editorial and organic user-generated content, enabling them to establish the difference between the two. Therefore, a disclosure label must be mandatorily added from the abovementioned list of approved labels to be considered as adequate as consumers may not be familiar with various creative ways in which advertisers and influencers may convey that the said communication is an advertisement and not an independently user generated content. Examples of such advertisements could be paid music promotion in a video, promoting a product or a particular brand through a post on the influencers’ media handle.
     
  2. Perceptibility: Promotional campaigns on Instagram/YouTube are predominantly visual campaigns, and users do not always pay attention to the text. In any event, there is only a restricted space in the description before the “see more” tab, which the younger generation or the millennials, do not have the attention span or patience to cater to. Accordingly, the Guidelines provide that the disclosure label used to highlight advertising content, needs to be evident and in clear sight (within the first two lines of any given platform, so as to enable a consumer to have clear visibility without having to click on ‘see more’ or scrolling under the fold without missing it) and compatible with any and all potential devices or platforms (website or application).
     
  3. Language: The disclosure label needs to be in a language that is well known and understood by the average consumer seeing the advertisement, be it English or any such other local language.
     
  4. No Blanket disclosures: The Guidelines state that a “Blanket Disclosure” is a one-time disclosure marked on the profile/bio/about section of the Influencer, contrary to an individual disclosure on each post and clarifies that such a Blanket Disclosure will be inadequate to qualify as a disclosure under the Guidelines, as the users visiting the site, might read individual reviews or watch individual videos without seeing the disclosure listed on the influencer’s page.
     
  5. Superimposition for increased visibility: If the concerned advertisement is only a picture post such as an Instagram story or a Snapchat post, the disclosure label needs to be superimposed over the picture or the post to ensure that the average consumer is able to see it clearly.
     
  6. In case of a standalone video: In the case of a video not accompanied by any text, the disclosure label should be superimposed on the video in a manner that is easily visible to the consumer. In the case of videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 2 seconds. Regarding the videos longer than 15 seconds, but less than 2 minutes, the disclosure label must stay for 1/3rd the length of the video. For videos that are 2 minutes or longer, the disclosure label must stay for the entire duration of the section in which the promoted brand or its features, benefits etc. are being set out to the consumer. Lastly, in live streams, the disclosure label should be placed periodically, for 5 seconds at the end of every minute so that the users who pick to see the stream mid-way can also see the disclosure.

    In case of a standalone Audio: In the case of audio media, the disclosure label must be clearly announced at the beginning and at the end of the audio to ensure that the consumer is aware of such promotion.
       
  7. Misleading filters: The guidelines also state that no filters should be applied to social media advertisements that might exaggerate the effect of the claim about the products that the advertiser is manufacturing and promoting - for example, using a beauty app to enhance the skin tone while advertising a de-pigmentation cream and using an enhancing filter to exaggerate the claim.
     
  8. Due Diligence: With great power, comes great responsibility, A Social Media Influencer must never promote something that they do not support, share reviews or make representations about any product/service without using/availing the same, or lie about a product/service in order to generate sales for the brand. According to a survey conducted by Valassis on 1000 consumers to understand consumer behavior,51% of consumers have purchased a product or service after seeing it being used or promoted by an Influencer2. Accordingly, it is indispensable for Influencers to conduct thorough due diligence about any technical or performance claims made by them such as 2x better, fastest speed, best in class, lose 10 kgs in 10 days, among others to avoid future trouble and misrepresentation. Evidence of due diligence would include correspondence with the advertiser or the brand confirming that the specific claim made in the advertisement is capable of scientific backing safeguarding them from scrutiny under the Consumer Protection Act, 2019.
     
  9. Entering into an Agreement: To safeguard the interests of both, the advertiser and the influencer, ASCI recommends to carry out a contractual agreement between the parties that clearly outlines clauses pertaining to disclosure, use of filters as well as due diligence.
     
Ready Reckoner for Social Media Platforms:
The Guidelines provide a ready chart for social media platforms which reads as under:
  1. Instagram: Disclosure label needs to be included in the title above the photo or in the beginning of the text that shows. In case only the image is seen, the image itself must include the label.
     
  2. Facebook: Inclusion of the disclosure label in the title of the entry or post is necessary. If only the image/video is seen, the image or video itself must include the label e.g. FB story.
     
  3. Twitter: Inclusion of the disclosure label or tag at the beginning of the body of the message as a tag.
     
  4. Pinterest: Inclusion of the disclosure label at the beginning of the message.
     
  5. YouTube and other video platforms: Inclusion of the label in the title / description of the post.
     
  6. Vlog: Overlaying of the disclosure label while talking about the product or service.
     
  7. Snapchat: Inclusion of the disclosure label in the body of the message in the beginning as a tag.
     
  8. Blog: Inclusion of the disclosure label in the title of the post.  
Application under the Consumer Protection Act, 2019 (“Act)
Under the Act, endorsers may be considered as social media influencers if they are paid by brands to endorse their products or services. The Act further lays down rules pertaining to the liability of the endorsers, in case the consumer suffers an injury due to misrepresentation of the product or service, a penalty extending up to INR 10,00,000/- and a penalty extending up to INR 50,00,000/- on any subsequent contravention can be imposed on the manufacturer or the endorser for such misrepresentation. The endorser can also be prohibited to endorse any product for a year in case of first default which can be extended up to a period of 3 years on any subsequent lapses. However, the Act provides that if the endorser has exercised thorough due diligence to verify the veracity, they shall not be liable to penalties under the Act.

Conclusion
With the increasing presence and popularity of social media influencers, to lay down grounding rules to regulate their engagement with the consumer when it comes to advertising is of paramount importance. Social media marketing being a highly unregulated area, has attracted a lot of negative attention, from influencers advertising and promoting alcohol to extreme weight loss teas, there has been a need for streamlining the digital media marketing and the same requires to be carefully regulated to avoid any unruly exposure to the younger generation.

With influencers falling under the ambit of the Act, a sense of security rests with the consumer pursuant to any misrepresentation or false advertising. However, for an industry that is spreading like wildfire and a generation that is consumed with the idea of social media, regulations need to be laid down so as to protect not just the consumer, but the Influencers and the brands bearing in mind the new branch and era of marketing strategies being taken up by the brands.

ASCI, being committed to the cause of self-regulation in advertising has taken a positive step with the new guidelines ensuring the protection of the interest of consumers. The mandatory and conspicuous disclosure of endorsement shall enable the consumer to have a conscious perception of the content that is made available to them as the consumer has a right to know when they are being served commercial promotion posts and when they are being served organic independent posts to encourage accountability and responsibility among Influencers and advertisers in order to sustain a healthy, transparent and rewarding digital marketing ecosystem.

Social media is a highly volatile sector with new developments taking place by the second. It is the primary responsibility of the governing bodies to formulate proper regulatory mechanism to not only instill a sense of answerability in the Influencers, protect the consumers, but also educate the masses towards the ever-changing realm of social media. The ASCI guidelines shaping the present and the future of Influencer marketing are highly anticipated.
  1. Guidelines for "Influencer advertising on digital media" draft for stakeholder consultation, ADVERTISING STANDARD COUNCIL OF INDIA (Feb. 2021), https://images.assettype.com/afaqs/2021-02/0b608628-7f01-433e-98e5-185916c4b12e/ASCI_Guidelines.pdf/
  2. Valassis Survey Analyzes the Growing Power of Influencer Marketing Today, VALASSIS, https://www.valassis.com/press-releases/valassis-survey-analyzes-the-growing-power-of-Influencer-marketing-today/