Guidelines for "Influencer advertising on digital media and possible punishment"

Context

As digital media becomes increasingly pervasive and more consumers start to consume advertising on various digital platforms, it has become important to understand the peculiarities of these advertisements and the way consumers view them.

With lines between content and advertisements becoming indistinct, it is critical that consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain.

Index

• Definition

• Disclosure (what, how, when , why, by whom, labels)

• Influencer advertising guidelines

• How will Advertising Standards Counsel of India handle complaints

• How can influencers comply (How can influencers be fined or jailed)

Definition

INFLUENCER An Influencer is someone, who has access to an audience and the power to affect their purchasing decisions or opinions about any 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.

MEDIA OWNERS Media owners include organizations or individuals in effective control of the management of media or their agents.

Media is basically any means used for the distribution of advertisements, which include but are not limited to press, cinema, radio, television, hoardings, hard bills, direct mail, posters, internet, digital, etc.

Disclosure that an ad is an ad - what, why, how, when

What? A disclosure is a clarification that a particular piece of communication/content is an advertisement.

Why? An average consumer should be able to recognise that something is an advertisement without having to click or otherwise interact with it. It needs to be clear/obvious, and consumers shouldn’t have to work to figure out whether what they are hearing, viewing or experiencing is an advertisement.

How? By using the disclosure label when a piece of communication is an advertisement.

When? The disclosure needs to be made upfront so that the consumer knows that they are viewing or hearing or reading or experiencing an advertisement before they view, hear, read or experience it.

Who?

The responsibility of the disclosure is upon the influencer or publishing account on which the advertisement is published, as well as the advertiser for whose brand the advertisement is.

In the case of a brand using a virtual influencer, the onus of the disclosure is upon the advertiser.

Following disclosure label options may be used by the influencers/advertisers #ad #collab #promo #sponsored #partnership

Guidelines for Influencer advertising on digital media

1. Advertisements must be obviously distinguishable by the average consumer from editorial and independent user-generated content, to prevent the audience from being confused between the two. Therefore a disclosure label must be added from the list of approved labels.

2. Only permitted disclosure labels will be considered as adequate as consumers may not be familiar with various creative ways in which advertisers and influencers may wish to convey that the said communication is an advertisement.

3. The disclosure label used to highlight advertising content needs to be upfront (within the first two lines of any given platform, such that a consumer need not click on see more or have to scroll under the fold), prominent (so people don't miss it), appropriate for the channel (what can you see and when) and suitable for all potential devices (it needs to be visible regardless of the device used, or platform such as website or app etc.).

4. The disclosure label must be in English or translated into the language of the advertisement in a way that it is well understood by the average consumer who is viewing the advertisement.

5. Blanket disclosures in a profile/bio/about section will not be considered adequate because people visiting the site might read individual reviews or watch individual videos without seeing the disclosure on another page.

6. 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.

7. In the case of audio media, the disclosure label must be clearly announced at the beginning and at the end of the audio.

8. The influencer 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.

9. It is recommended that the contractual agreement between advertiser and influencer carries clauses pertaining to disclosure, use of filters as well as due diligence.

COMPLAINT HANDLING

ASCI will issue a notice to both brand owner and influencer for violation of any guideline in the case of a consumer complaint or suo motu cognisance of a potentially objectionable advertisement. In the case of disappearing posts, a screenshot with timestamp would suffice as prima-facie evidence of the advertisement having been published.

How can influencers comply?

• The influencer now has a statutory obligation of doing a thorough background check on the product they want to advertise/associate themselves with.

• Further, they will also have to make sure that the sponsored content does not violate any legal regulations for the time being in force.

• The opinion about a product or a service should to the best of the influencers knowledge should state and show an authentic opinion.

• Making a general statement about the product for the end users should be avoided at all costs.

• The date from which all the influencers will have to start complying with these guidelines is from the 15th of April 2021.

How can influencers be fined or jailed?

Speaking of the punishment, the regulations do not provide for any kind of punishment, but the Consumer Protection Act of 2019 provides penal provisions for making a false or misleading advertisement, and the one doing so, could be jailed for up to 2 years or can be fined up to 10 lakh rupees (INR 10,00,000) or both.