Influencer Guide to Advertising on Digital Media Platforms
Social networks have spared no one. With the pandemic hitting the world, the country has seen an increase in the use of digital media platforms, in which content creators have played a central role. To regulate the myriad of advertising and promotional content circulating on various platforms like Instagram, YouTube, Twitter, etc., the Advertising Standards Council of India (“ASCI“) has published draft guidelines for influencer advertising in digital media (“Guidelines”) in February 2021. These draft guidelines were originally published to solicit comments from all stakeholders: advertisers, agencies, influencers and consumers. The 27e May 2021, ASCI published the final guidelines which must be followed by all influencers of the 14e from June 2021. The main objective of the guidelines is to ensure that consumers are able to distinguish promotional content that is presented with the intention of influencing consumer behavior for immediate or eventual commercial gain.
Overview of the guidelines
According to the guidelines, an influencer is defined as “a person with access to an audience and having the power to influence the purchasing decisions or opinions of that audience about a product, service, brand or experience, by virtue of authority, knowledge, position or relationship of the influencer with his audience”. The Bombay High Court in the case Marico Limited v. Abhijit Bhansalirecognized “social media influencers” as a nascent category of individuals who have a large subscriber base and high credibility in the social media space. The Guidelines also identify “virtual influencers” as “people” or fictitious computer-generated avatars. Lu Do Magalu and Barbie are just a few examples of virtual influencers recognized around the world. India also got its first virtual model in 2020, Nila – who has joined a growing list of digital influencers internationally.
In addition, the Guidelines also provide a non-exhaustive list of what constitutes digital media. This includes, but is not limited to, Internet, mobile streaming, mobile, communications content, websites, blogs, apps, digital TV (including portable and terrestrial digital video broadcasting), non-standard television, digital delivery, home entertainment, digital terrestrial television, etc. .
We have noticed that various food, fashion and travel influencers tend to caption their respective posts as “ad” or tend to put a title that says “”paid partnership”. Although this has not been a constraint until today, it is now mandatory for influencers or their representatives to wear a disclosure label on their social networks, which clearly identifies these posts as an advertisement. The Guidelines prescribe certain criteria that must be used in determining whether such disclosure is required.
The Guidelines require that disclosure be required if there is a material connection between the advertiser and the influencer. “hardware connection”Refers to a link that can affect the weight or credibility of the representation made by the influencer. The material connection may take the form of monetary or other compensation, free products with or without conditions, including those received unsolicited, discounts, gifts, participation in contests and sweepstakes, travel or hotel stays, media swaps, blankets, awards or any family or work relationship, etc. It is relevant to note that the material connection is not limited to monetary compensation. In the future, whenever a celebrity promotes fashion brands like ‘Levi’s‘or a spread of’Epigamy ‘, he / she should ensure that the Guidelines are strictly followed and that the appropriate disclosure is made.
However, it should be noted that no disclosure is required if there is no material connection and the influencer is simply giving their own opinion on a product / service that they themselves have purchased. If a famous baker wants to promote a specific brand of cocoa powder that he uses on a daily basis and personally considers it a good buy, he can certainly recommend the same in good faith. However, if the same brand approaches the baker and asks him to promote the same product, and the brand in return agrees to give him discounts, he will need to ensure that it is a promotion or ‘an advertisement.
Disclosures required from influencers should be direct and prominent so that they are not missed by the average consumer. If an advertisement is not accompanied by a caption or text, a disclosure in that advertisement (audio, video and live broadcast) must be overlaid for the period mentioned below:
“Advertising, Announcement, Sponsored, Collaboration, Partnership, Employee, Free Gift” are labels allowed under the Guidelines and the influencer may use any of them. The disclosure must be in English, or in the language of the advertisement itself, in a way that is understandable for an average consumer to decipher. In addition, it is the responsibility of the virtual influencer to inform their consumers that they are not interacting with a real human being. Since virtual influencers are created digitally by individuals, it can be deciphered that the obligations under these guidelines are intended to be imposed on the organization that controls the positions of that virtual influencer.
Dos and Don’ts Checklist for Influencers and Brands
In short, here is a list of dos and don’ts that influencers and brands should follow when engaging in media platforms.
It is the responsibility of the advertiser and the influencer to disclose the details required as stipulated in the Guidelines. In addition, the advertiser and influencer are required to comply with the ASCI Code for Self-Regulation of Advertising Content in India (“ASCI code”) And its guidelines. The Guidelines give the freedom to an advertiser to remove or modify an advertisement or the disclosure label in order to adhere to the ASCI Code. Additionally, under the Guidelines, influencers have been advised to exercise due diligence before engaging in promotional advertisements and to ensure that the advertiser will be able to substantiate the claims made in the advertisement.
Consumer Protection Act, 2019
The Consumer Protection Act, 2019 (“COPRA”) Replaced the three-decade-old Consumer Protection Act 1986 and attempted to address the challenges that digital media have placed on consumers. COPRA has broadened the definition of “consumer” and now defines the consumer as anyone who purchases goods, digitally or offline, through teleshopping, direct selling or multilevel marketing. The old law on consumer protection did not cover electronic commerce. It is relevant to note that under Article 89 of the COPRA, the penalty for making deceptive advertisements which are detrimental to the interests of consumers is imprisonment of up to two years and a fine of up to ten lakh rupees. In the event of a repeat offense, this person will be punished with imprisonment of up to five years and a fine of up to fifty lakh rupees. This provision aims to curb deceptive and deceptive advertising campaigns that go through social media influencers.
In addition to the guidelines, ASCI aims to develop an inclusive educational approach to shaping the influencer advertising narrative. ASCI also launched a platform –https://asci.social/ (“Platform“), which is an interactive platform with dos and don’ts, FAQs, guideline information, and more, which aims to help influencers and advertisers adhere to the guidelines.
In order to monitor potential violations of these guidelines, ASCI has identified a French technology provider – “Reech” which would use artificial intelligence to identify the lack of disclosure on commercial social media posts..
Approach to other countries
The UK Code for Undisclosed Advertising and the Code for Direct and Promotional Marketing (“CAP code”) And the Consumer Protection from Unfair Trading Regulations 2008 are important pieces of legislation regulating influencer advertising in the UK. As the name suggests, the CAP code applies to undeliverable advertising, sales promotions, and direct marketing communications (marketing communications).
In the United Arab Emirates (“United Arab Emirates“), all advertising content must comply with the requirements of the National Media Council (“NMC”) Council Resolution No. (26) of 2017 on Media Content. According to NMC, an influencer is anyone who exerts some form of influence or influence over specific industries or groups of people through their social and digital channels. Similar to guidelines, NMC also insists that influencers should include hashtags like “#ad” or “paid_ad” and that these should not be accompanied by multiple hashtags that clutter the caption. The goal is to make sure that the audience should be able to understand that this is a sponsored article or advertisement.
In the United States of America (“United States“), Federal Trade Commission (“FTC”) Governs the approvals made by influencers. The FTC issued a document on behalf of “Disclosures 101 for Social Media Influencers”. This FTC document provides advice on when and how to make good disclosures and emphasizes the “hard connection” aspect. Various other countries like Spain, Italy and the Netherlands also have similar guidelines in place to control the advertisements posted by influencers.
Impact of the guidelines
Have you ever wondered if a health fanatic cricketer would be munching on Too Yumm tokens. In the ad it is claimed that the fries are baked and not fried, but this claim was only made for three variations and not for the other variations presented in the ad, resulting in ambiguity, implication and exaggeration. . There was also a glaring contradiction between the statement “Eat a lot and not Fikar” and the warning quoting “We encourage responsible indulgence in the context of dietary needs”. The celebrity visual when seen in conjunction with the claims is likely to mislead consumers about the characteristics of the product..
In a country like India, where ordinary people revere influencers and celebrities and follow them through to the end, it is essential to have guidelines in place that help consumers understand and differentiate a personal opinion from one. commercial advertising. While televisions are not a viable option for many, buying cell phones is profitable and with easy access to the internet the dynamics of how an influencer can ‘influence’ someone’s life has changed dramatically. .
Digital marketing has gained immense popularity and brands around the world are using it as a tool to attract consumers. With a boom in influencer marketing, these guidelines are the need of the hour that will structure and set limits in the digital marketing space. These guidelines will certainly be seen as a welcome change.