ASCI’s Guidelines For “Influencer Advertising” on Digital Media-w.e.f 14th June 2021
The Advertising Standards Council of India (“ASCI”) on 27th May, 2021, released the final ‘Guidelines For Influencer Advertising In Digital Media’ (“Guidelines”) in an 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 behavior for an immediate or eventual commercial gain. The Guidelines are to come in force w.e.f 14th June 2021.
These Guidelines are issued with an aim to prevent the inherently misleading messages shared by Influencers on Social Media Platforms 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.
Whatever it is, the way you tell your story online can make all the difference.
KEY HIGHLIGHTS OF THE GUIDELINES
1. Who is an Influencer? – An ‘influencer’ has been defined in its broadest sense possible to inter alia mean someone who has (a) access to an audience on social media and (b) power to affect the decisions or opinions of their audiences about a ‘product, service, brand or experience’.
2. Does an Influencer have to be Natural Person? – No. In an attempt to avoid leaving any room for manipulation of these Guidelines, the ASCI also provides for a definition of a ‘Virtual Influencer’ to inter alia mean fictional computer generated avatars who have the realistic characteristics and behave in a manner similar to influencers.
3. What amounts to Material Connection: This term has been specifically defined to mean any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer which even includes issuance of free products or unsolicited gifts, discounts, contest and sweepstake entries, trips or hotel stays, media barters, coverage, awards, or any family or employment relationship between the advertiser and the influencer in addition to the typical benefits and incentives such as monetary or other compensation.
4. What amounts to Digital Media under these Guidelines? – The Guidelines provides a non-exhaustive definition of ‘Digital Media’ whereby it has been defined to include within its ambit all plausible forms of digital content and platforms for delivery of such content including but not limited to all the contemporary social media platforms used by the GenZ today.
5. What obligations are cast on Influencers and Advertisers? – As per the Guidelines, all influencers and advertisers having accounts on any digital platform will be required to carry a pre-approved disclosure label (such as #ad, #collab, #promo, #sponsored, or #partnership) that clearly identifies the promotional nature of their content as an advertisement.
A virtual influencer must additionally disclose to consumers that they are not interacting with a real human being. This disclosure must be upfront and prominent
6. How to determine if disclosure is required? – The Guidelines attempt to provide air-tight criteria for determining if disclosure is required under these Guidelines such as:
- If material connection is established between the Influencer and the advertiser;
- 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.
7. What is the manner of making disclosure? – The Guidelines provide a list of ‘dos and donts’ that must be followed while making the disclosure upfront and prominent so that it is not missed by an average consumer, which include:
- Placing the disclosure label(s) in a manner that is hard to miss;
- Not to place the disclosure only on an ‘ABOUT ME’/profile page/bios/end of posts or videos/anywhere that requires a person to click MORE;
- Not to make the disclosure get 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.
8. Are there any particular disclosure labels prescribed? – Yes, The list is:
(i) Advertisement; (ii) Ad; (iii) Sponsored; (iii) Collaboration; (iv) Partnership; (v) Employee; and (vi) Free gift.
Disclosure labels should either be in English or the language as the Ad itself making it easy for an average consumer to understand.
9. Who does the responsibility for disclosing material connection lies on? – The Advertisers and Influencers both, are responsible for identifying and thereafter disclosing any material connection and compliance to these Guidelines.
10. Is there a requirement to verify the claims made by the advertisers through the Influencers? – The Guidelines advise Influencers to review and satisfy themselves that the advertiser is in a position to substantiate the claims made in the advertisement qua the product/service.
11. What is the manner of handling a Complaint? - Notice to both brand owner and influencer shall be issued by ASCI for violation of any provisions of these Guidelines in the case of a consumer complaint or suo motu cognizance of a potentially objectionable advertisement. An entity that does not abide by them as ASCI is not a governmental body, will be governed by 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.
Detailed version of the Guidelines is available on https://asci.social/
Written By
Zalak Mody, Associate, A&P Partners
[In case of any assistance, please reach out to us on asingh@anppartners.in or + 91 7506185133]