India - Misleading Influencer Advertisements Under Scanner – ASCI Issues Draft Guidelines.
Legal News & Analysis - Asia Pacific - India - Intellectual Property
30 March 2021
The last few years have seen an astonishing growth in influencer marketing. Celebrities and content creators with massive reach on social media platforms are entering into paid collaborations with brands to support their product promotion campaigns. In the absence of any label/disclaimer tied to their promotional posts, consumers often fail to distinguish between a sponsored social media post and an organic one. The lack of transparency and authenticity has led to a rise in deceptive marketing behaviour impacting consumer choices negatively. To put a check on this, the advertising watchdog Advertising Standards Council of India (ASCI) has recently released draft guidelines for influencer advertising on digital media which are open for feedback from all stakeholders. Based on the feedback and inputs, the final guidelines will be issued by March 31, 2021, which would be effective from April 15, 2021.
The guidelines contain a few requisitions that would help consumers distinguish between advertisements and regular social media posts. The key proposals captured in the draft guidelines are as follows:
A disclosure label must be added to distinguish advertisements (for example paid music promotion in a video, promoting a store or a brand through a post on the influencer’s media handle) from editorial and independent user-generated content.
The disclosure label used to highlight advertising content needs to be upfront, prominent, appropriate for the channel and suitable for all potential devices. The same must be in English or translated into the language of the advertisement in a way that is well understood by the average consumer who is viewing the advertisement.
If the advertisement is only a picture post such as Instagram stories or Snapchat, the label needs to be superimposed over the picture and it should be ensured that the average consumer is able to see it clearly.
In the case of a video not accompanied by a text post, the disclosure label should be superimposed on the video in a manner that is easily visible to the viewer. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 2 seconds. For videos longer than 15 seconds, but less than 2 minutes, the disclosure label stays 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 mentioned. In live streams, the disclosure label should be placed periodically for 5 seconds at the end of every minute so that users who see part of the stream can see the disclosure.
In the case of audio media, the disclosure label must be clearly announced at the beginning and the end of the audio.
Filters should not be applied to social media advertisements if they exaggerate the effect of the claim that the brand is making for example, shinier hair, whiter teeth etc.
The influencers must do their due diligence about any technical or performance claims made by them such as 2X better, effect lasts for 1 month, fastest speed, best in class etc. Evidence of due diligence would include correspondence with the advertiser or brand owner confirming that the specific claim made in the advertisement is capable of scientific substantiation.
It is recommended that the contractual agreement between advertiser and influencer carries clauses pertaining to disclosure, use of filters as well as due diligence.
The above guidelines are an attempt to bring about more transparency in influencer advertising through compulsory disclosure labelling. The influencer world and brands will need to be more responsible and change the way they currently operate on social media platforms, as and when these guidelines come into effect. With upfront declarations, consumers would be less likely to get confused between organically shared independent opinions and paid advertisements. The due diligence related obligations will push influencers to investigate and ask for claim substantiation documents from brands, before endorsing their products.
Though ASCI has attempted to strike a proper balance between consumer interests and commercial interests of brands and influencers; the manner of placement of disclaimers prescribed in the guidelines may invite some criticism from the content creator industry and brands on the ground of diluted content viewing experience. It would be interesting to see if stakeholders’ feedback results in some changes in the final text of the guidelines; the essence thereof is likely to remain the same, though.
1st published in Lexology.
For further information, please contact:
Manisha Singh, Partner, LexOrbis