"Understanding the Legal Responsibilities of Social Media Influencers"

Ishwarya Dhube

Introduction

Social media has become a go-to platform after the world was slapped by a global covid- pandemic, leading millions of people wielding online. According to Arihant Webtech, social media users have shown a prodigious growth from 3.6 million to 4.33 million from 2020 to 2023 respectively. It is stupendously used as a medium of expression and speech, leading to commercialization based on influencing. Nevertheless, this has undisputedly caused legal intervention due to the commercial influence impacted on the populace. Social media “influencing” has escalated the ‘word of mouth’ to ostentatiously emphasize consumerism.

In a recent adjudication of Marico Limited v Abhijeet Bhansali, considered yet another a novelty judgement resonant to social media, plays an important role for the guidelines for the same. The plaintiff, inter alia, marketed ‘PARACHUTE’, alleged the defendant for a false and denigrating act through a publication of a video titled “Is Parachute Coconut Oil 100% Pure?”, on his YouTube channel named “Bearded Chokra”. The defendant was called upon in response from the Plaintiff’s lawyers to cease the video because its repugnant nature, concerning the plaintiff’s business. The foresaid proposal was refused to accord by the defendant stating that he had a right to voice his opinion.

IN the view of the impugning statements mentioned in the present case, Justice S.J Kathawalla duly exercised an emphasis on the burden on influencers for the validity of their statements. Interestingly, he noted the legal conflicts that bubbled from the freedom of speech against advertising. There is prima facie nothing wrong with the promotion of products, unless there is an ‘native advertisement’, and any action for dubio pro reo in relation, or the ‘law of disparagement’ for that matter.

In the context of the present case, it is understandably derived that social media influencers have amassed a power to influence a colossal of populace, resulting in legal repercussions. Estimated influencer market in India has a good hold of  $75-$150 million a year, and is furthermore presumed to become the mainstream market with millions of people going online. The genuinety of reviews are blurring with commercial promotion. There is an evident need of legal requirements to meet from the influencers as well as the sponsoring parties, for which the ‘Advertising Standards Council of India’, or better known as ASCI guidelines was released.

What is ASCI?

Advertising Standards Council of India (ASCI) is a self-regulatory, non-profit organization established under section 25 of the Company Act led by Saugata Gupta as its chairman. The guidelines of ASCI are revising in nature.

According to ASCI, an influencer is “someone who has access to an audience and the power to affect their audience's purchasing decisions or opinions about a product, service, brand or experience, because of the influencer's authority, knowledge, position, or relationship with their audience.” It also defines virtual influencers as “fictional computer-generated ‘people’ or avatars.”

Keeping in view the effect on consumerism based off influencers, and the fact that there is an influence on consumers without the acknowledgement of commercial intent on such content. It provides a codified system for a free market in the booming influencer industry. The major prominence is of

1. Disclosure: There must be a disclosure on the influencer’s account if there is any material connection between the advertiser and influencer. Disclosures are not only limited to any fiduciary and monetary benefits, but extend as far as any benefits holding any value to the influencer such as to talk about the advertiser’s product or service. The requisite element for a content to be considered ‘advertisement lies into the extent of the material connection for the same.

Furthermore, such disclosure must be made in a clear and obvious manner, which is upfront and prima facie ‘hard to miss.’ It should not buried in hashtags. It should be inculcated in a label, and be made in manner that is well understood by the general populace of consumers, preferably in English. Positioning should be upfront and prominent. The duration wise guidelines include:

● I. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 3 seconds.

● II. For videos longer than 15 seconds, but less than 2 minutes, the disclosure label should stay for 1/3rd the length of the video.

●III. For videos which are 2 minutes or longer, the disclosure label must stay for the entire duration of the section in which the promoted brand or its features, benefits etc are mentioned.

● In the context of image, or a video without text, the label must be superimposed on such image or video, where there is a clear-cut implication on consumers.

● For livestreams, it should be introduced initially and at the end of such livestream, and if it continues further, it should be imposed as a caption/text.

● For audio, too, it must be clearly announced at the beginning and end of the video.

2. Due diligence: The influencers are advised to substantiate the position of advisers’ claim. Such practice must be performed by influencers employinf for any company, on any social media platform.Due diligence was brought into importance on the same abovementioned case of Marico Limited v Abhijeet Bhansali; The High Court noted that influencers have a degree of creditability, and the efficacy to elevate a goodwill of a business. Such person is burdened with scrutiny and reasonable veracity of such thing employed. They have a profound impact on the audience, and it is only rational for an influencer to forebear any liability that could supposedly incur in future. They should be imposed to research their product first handedly before.

Conclusion:

IN a recent addendum, there was an update in the ASCI guidelines for a disclosure of qualification norm in the health care and financial sectors. This means the well- being of the general populace to the information they receive.

Neel Geogia, the co- founder at IPLIX media commented, “When a person is delivering content confidently, the viewer feels that they are credible and knowledgeable. A few unqualified creators took advantage of that and spread false information, causing audiences to lose money. Even if few creators did this, audiences lose faith in individuals as a group. This can destroy the category for even trustworthy creators who are creating genuine content.”

ASCI guidelines are important for self-regulation of the well-being of content creation, its legal implications, and the general health of the populace. For the distinction between the disparaging and bona fide content creation for the businesses as well as the influencers, the guidelines have stood and improved to the challenges it has faced.