ASCI Guidelines for Influencers

THE RECENT GUIDELINES RELEASED FOR “INFLUENCER” ADVERTISING ON DIGITAL MEDIA BY ASCI – EFFECTIVE JUNE 14, 2021

INTRODUCTION
APPLICABILITY
ADVERTISING COMPLIANCE REQUIRED UNDER THE ACT
LEGAL COMPLAINCE
CONSEQUENCES OF NON-COMPLIANCE

INTRODUCTION

At present and for time immemorial, there has been no central legislation or statutory body that governs advertising in India across all sectors. Advertising in India is regulated and controlled by the Advertising Standards Council of India (“ASCI”), a non-statutory body constituted in 1985.

With the boom in the advertising via various social media platform by Influencers, it was about time that a regulation is devised to regulate it. ASCI has adopted a Code for Self-Regulation in Advertising (“ASCI Code”), which applies to all enties and individuals involved in the commissioning, creation, placement, or publishing of advertisements. This ASCI Code applies to advertisements read, heard, or viewed in India even if they originate or are published abroad so long as they are directed to consumers in India or are exposed to a significant number of consumers in India. The ASCI Code provides for category specific guidelines for various sectors such as Automotive Vehicles, Food and Beverage Products, Educational Institutions, Political,etc of which Influencer advertising and marketing will now form a part.

The ASCI on 27 May 2021, has released the final ‘Guidelines for Influencer Advertising in Digital Media’ (Guidelines) applicable for all posts published by influencers post 14 June 2021. The present ASCI Guidelines are in line with the UK Code of non-broadcast Advertising and Direct & Promotional Marketing (“CAP Code”).The primary objective of these guidelines is to enable consumers to identify:

1. Paid promotional content from the other content posted by influencers;
2. Aimed at preventing business owners and influencers from misleading customers through promotional posts or campaigns on digital media platformsshared by Influencers which are often misunderstood by the consumers without realizing the commercial intent behind such messages which are in clear violation of Clause 1.4 (misleading by omission) and Clause 1.5 (abuse trust of consumers or exploit their lack of experience or knowledge) of the parent ASCI Code;
3. Attempt to clearly define the ever increasing blurring lines between ‘content’ and ‘advertisement’ and to foster the ability in consumers to identify if something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain
4. Regulate and control the content of advertisements to ensure that they should not offend morality, decency and religious susceptibilities of the consumers apart from the ASCI Code.

The Guidelines are to be effective from 14th June, 2021.

APPLICABILITY

The Guidelines are applicable to all social media influencers or their representatives.
“Influencers”: These Guidelines define an ‘influencer’ to inter alia mean someone who has

1. access to an audience on social media and
2. power to affect the decisions or opinions of their audiences about a ‘product, service, brand or experience’.

Further, the Guidelines even go a step further and define a ‘Virtual Influencer’ to inter alia mean fictional computer generated avatars who have the realistic characteristics and behave in a manner similar to influencers to avoid leaving any room for manipulation of these Guidelines by anyone.

ADVERTISING COMPLIANCE REQUIRED UNDER THE ACT

The Guidelines mandate Influencers to affix ‘Disclosure Labels’ [i.e. (i) Advertisement; (ii) Ad; (iii) Sponsored; (iii) Collaboration; (iv) Partnership; (v) Employee; and (vi) Free gift] in case of that clearly identifies the promotional nature of their content as an advertisement.

The criteria for determining if disclosure is required under these Guidelines for a specific advertisement is:

• If material connection is established between the Influencer and the advertiser.
  “Material Connection” is established between an advertiser and influencer, with or without there being any monetary or other compensation i.e. even in case of free gifts received from Companies which then later ask you to review the product and share your thoughts on with your audience on any digital platform. In such cases, it is sufficient if you simply label your content as ‘Free Gift’.
• If there exists anything of value given to by the Advertiser to the Influencer to mention or talk about whether any monetary compensation is involved or not; and
• If there are even unbiased evaluations made by an Influencer as a result of a material connection having been established.

However, disclosure shall not be required if an Influencer is sharing information about any product/service they bought and liked without any material connection established.

The Disclosure Labels are to be affixed at a prominent place of the content uploaded on the digital platform as follows:

• At a place that is hard to miss;
• Not only on an ‘ABOUT ME’/profile page/bios/end of posts or videos/anywhere that requires a person to click MORE;
• Not buried in a group of hashtags or links;
• Using platform’s disclosure tool in addition to an influencer’s own disclosure;
• For Ads that are ONLY A PICTURE OR VIDEO POST (Such as Instagram Stories or Snapchat Stories):
  • To superimpose the disclosure label over picture/video to ensure that an average consumer to see it clearly
  • Disclosure label to stay (i) for at least 3 seconds in videos >15 seconds long; (ii) for at least 1/3rd of the length for videos <15 second s but > 2minutes long; the entire duration for videos that are <2minutes long.
• For Ads that are made in LIVE STREAMS: Disclosure label should to be announced at the beginning and the end of the broadcast and added to the text/caption if the post continues to be visible after the live stream is over.
• For Ads that are made in AUDIO MEDIA: Disclosure label should to be announced at the beginning and the end of the audio and breaks taken in between, if any.

LEGAL COMPLAINCE

The Influencers will now be required to conduct proper due diligence of the Product/Service they are promoting and the claims made by the Advertiser since the onus now lies on both, the Advertiser and the Influencer;

(For this, ASCI has launched a platform ASCI-Social for any query regarding the Guidelines which you can even approach when you have a doubt regarding the claims made by an Advertiser)

Also, in case of a Contract entered into between the Advertiser and the Influencer, the Influencer in order to protect themselves, will have to be alert and accordingly include a clause for indemnifying them against any third party action that may be initiated against the Advertiser or the product/services being promoted by the Influencer.

CONSEQUENCES OF NON-COMPLIANCE

The ASCI Code lays down an exhaustive procedure for handling Complaints referred to the ASCI or taken cognizance of by the ASCI suo motu. It is pertinent to note that since ASCI is a Self-Regulating body, it shall not be imposing any penalties/fines as a result of non-complaince. However, it may address complaints filed by consumers or take suo-motu cognizance of any breach and refer the same to the ASCI’s Consumer Complaints Council (“CCC”). The CCC shall then evaluate the Complaint referred to it and communicate its decision to the concerned Advertiser and Influencer directing them to to either take down or modify the content posted by them on digital media.

In case of non-compliance by the Advertiser and Infliuencer of the direction of CCC, ASCI will inform the concerned Regulatory Authority or Government Department (such as Ministry of Information & Broadcasting, Department of Consumer Affairs, Food Safety & Standards Authority of India, Ministry of Ayush, etc.) for their appropriate action as per existent laws as well as communicate this to the industry bodies (such as Indian Broadcasting Foundation, Indian Newspaper Society, etc.) for also their appropriate action.

In the alternative, any entity that does not abide by the direction and guidelines of ASCI, also has an option to file a complaint under the Consumer Protection Act, 2019 which stipulates a penalty in the form of imprisonment for a term up to 2 (two) years and a fine up to INR 10,00,000 (Ten Lakh Rupees) for making a false or misleading advertisement.

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