The Advertising Standards Council of India (“ASCI”) on 27 May 2021 released the ‘Guidelines for Influencer Advertising in Digital Media’ (“Guidelines”). The objective of the Guidelines is to enable the consumers to differentiate between the content created by influencers in the general scheme of things to that from content created with a promotional/profit-making intent. Contextually, the Guidelines have been created to prevent the circulation of promotional posts and campaigns that may exploit the lack of knowledge of the consumer, mislead the consumer and abuse their trust.
- The Guidelines have defined an ‘influencer’ to mean “someone having access to an audience and power to affect such 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” and ‘virtual influencer’ which includes fictional computer generated ‘people’ or avatars.
- The ASCI has framed the Guidelines largely encompassing all modes of Digital Media including but not limited to internet (advergames, sponsored posts, branded content, promotional blogs, paid-for links, gamification, in-game advertising, teasers, viral advertising, augmented reality, native advertising, connected devices, influencers, etc.), on-demand platforms, mobile broadcast, mobile, communications content, websites, blogs, apps, etc. /Digital TV, non-standard TV, digital delivery home entertainment and digital terrestrial television. It has been made mandatory that influencers place relevant disclaimers for social media posts that are promotional/commercial in nature
- Disclaimers need to be applied when there is a ‘material connection’ between an influencer and an advertiser. Material connection could include benefits and incentives, such as monetary or other compensation, free products with or without any conditions attached including those received unsolicited, discounts, gifts, contest and sweepstakes entries, trips or hotel stays, media barters, coverage, awards or any family or employment relationship, etc. It has been made mandatory to make the requisite disclosures in the form of labels such as Advertisement, Ad, Sponsored Collaboration, Partnership, Employee, Free gift, paid partnership tags etc. in a manner that is hard to miss, upfront and prominent to the average consumer. Such disclosures will likely even be required for reviews of products or services that are unbiased or fully based on the Influencer’s views, as long as there is a ‘material connection’ between Advertiser and Influencer.
Through these Guidelines, a responsibility of applying a disclosure has been placed upon the advertisers as well as the influencers. The content created should be in consonance with the ASCI Code for Self-Regulation of Advertising Content in India (ASCI Code) and the Influencer Guidelines. If an influencer/ advertiser disputes a complaint from the ASCI, that the content in question is not an advertisement by virtue of there being no ‘material connection’, a declaration from the advertiser will have to be submitted to the ASCI confirming that there is no ‘material connection’ between them and the influencer as on the date of the post. In the event that the advertiser of the brand featured is difficult to trace or if the piece of communication features brands of multiple advertisers, then proof of purchase of featured products and brands, provided by the influencer, would be considered adequate evidence to refute material connection.