The Advertising Standard Council of India (ASCI) has released Guidelines for Influencer Advertising in Digital Media (“Guidelines”) which are applicable to posts published from June 14, 2021, onwards. A draft version of these guidelines was initially circulated on 22 February 2021, for consideration and comments from relevant stakeholders (advertisers, agencies, influencers, consumers). Post revision, the final guidelines were released on June 1, 2021.
With the growing influence of digital media, ASCI believed that it was crucial for consumers to have the requisite information when something was being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain.
Key Highlights of the Guidelines:
Who is an Influencer?
The guidelines define “Influencers” 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 Guidelines also recognize the growing trend of virtual influencing, thereby including fictional computer-generated people or avatars as virtual influencers within its scope.
What disclosures have to be made?
The guidelines mandate that all advertised/sponsored posts published by or on behalf of social media influencers through their accounts must carry a disclosure label that clearly identifies them as advertisements.
The content, format and placement of the disclosure:
Influencers or their representatives must clearly label their advertisement posts (from a list of approved labels, namely; Advertisement, Ad, Sponsored, Collaboration, Partnership, Employee or Free gift) in English or in the language of the advertisement.
Additionally, virtual influencers must disclose that they are not interacting with real human beings. The responsibility of disclosure of material connection also lies upon the advertiser.
The disclosures must be upfront, that is, a user should not have to click ‘see more’ while reading the post caption. Further, blanket disclosures, for instance availing the ‘link in bio’ option, shall be considered inadequate.
Placement in case the Ad is merely a picture or a video post:
In cases where the advertisement is not accompanied by text, for instance - an Instagram story, then the disclosure label must be superimposed over the picture or the video. In addition:
- If a video is 15 seconds or lesser, the disclosure label must stay for a minimum of 3 seconds;
- If the duration is 15 seconds to 2 minutes, the label should stay for 1/3rd of the length of video; and
- For videos longer than 2 minutes, the label must stay for the entire section of the video that mentions the promoted brand or its benefits/features etc.
When is the disclosure required?
As per the Guidelines, disclosure is required if there is a material connection between the advertiser and the influencer. The material connection may be monetary or in any other form such as discounted products, perks etc.
As long as there is a material connection between advertisers and influencers, disclosure would be necessary even if the influencers are unbiased or the evaluations are formulated by the influencers.
Whose responsibility is it to ensure the disclosure?
Both Influencers as well as advertiser whose product or service is promoted through the advertisement bear the responsibility of proper disclosure of material connection and the content of the advertisement.
For clarity, where Advertiser has a material connection with the Influencer, Advertiser’s responsibility will be to ensure that the posted Influencer advertisement is in line with the ASCI code and its Guidelines. While the Influencer shall be responsible for making disclosures required under the Guidelines.
Further, the newly formulated guidelines, put the onus on influencers to carry out Due Diligence to review and satisfy themselves of the claims in the advertisement. In other words, influencers must present their opinions on the sponsored content subject, based on their genuine experiences of usage.
What would be the consequence of non-compliance?
Owing to the self-regulatory nature of ASCI, the enforcement mechanism of the Guidelines for Influencer Advertising in Digital Media is marred with obscurity. The only available remedy against the violations of the directions formulated under the new guidelines is by filing a complaint under the Code of Self-Regulation of ASCI (ASCI Code), by the relevant consumer cohort, or on a Suo motto action by ASCI.
Once a complaint is registered, it is forwarded for review to the Consumer Complaints Council (CCC) which functions as its examining body. The CCC would consider the complaints raised as well as the response of the advertiser, even if the advertiser is not a member of ASCI, before giving its recommendations on whether the advertisement in question violates the provisions of the Code. If the complaint is upheld, then the advertisers would be directed to modify the advertisement or pull it out.
The ASCI being a self-regulatory body has no powers to penalize advertisers and may only have them modify or remove their advertisements should they not comply with their Code.