A GLOBAL AFFAIR INFLUENCER GUIDELINES: A BRIEF ANALYSIS

Businesses have through the years learned to overcome adversities, whether at an organizational, national, and now even at an international level. The growth of a business is no longer pegged to mere management of resources and planning for the future but also factoring in unforeseen events. The global pandemic has taught all businesses just that, and the advertising and marketing business has been no exception. When social media marketing was slowly gaining prominence, the pandemic ushered it into a completely new era of 'influencer marketing'. As per the report issued by the Statista Research Department, the global influencer market size has more than doubled since 2019. In 2021, the market was valued at a record 13.8 billion US dollars.

GLOBAL INFLUENCER GUIDELINES

Influencer marketing allows online consumers to form opinions on different products and services that are available and also provide invaluable data to companies to understand consumer trends. It is because of the impact that influencer marketing has on vulnerable consumers that the regulation around it has been time and again evaluated and different regimes have issued and revised guidelines to keep it in check. The International Consumer Protection and Enforcement Network, formerly known as the International Marketing Supervision Network (IMSN), a worldwide organization involving more than 60 countries, most of which are members of the Organization for Economic Cooperation and Development (OECD), has as early as 2016 issued guidelines for digital influencers to curb and penalize misleading practices. It has stated that digital influencers should be guided by the following principles:

(i) Disclose, clearly and prominently whether content has been paid for,

(ii) Be open about other commercial relationships that might be relevant to the content, and

(iii) Give genuine views on markets, businesses, goods and services.

When one analyzes the guidelines issued by authorities in different international jurisdictions, it is apparent that aforementioned principles are the underlying theme for them all. Whether it is the 'Disclosures 101 for Social Media Influencers' in the United States of America, the 'UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) in the United Kingdom, the 'AANA's Code of Ethics and Best Practices Guidelines' in Australia or the Advertising Standards Council of India (ASCI)'s 'Guidelines for Influencer Advertising in Digital Media' in India, they all echo the same ideology. While some of the guidelines include penalties and some do not, establishing specific dos and don'ts for safeguarding online consumers from being duped by misleading advertisements and raising awareness of sponsored advertisements is the common thread that brings uniformity amongst them.

INDIA

In India, ASCI, the self-regulated watchdog of advertising, has tied up with well-known social media influencers, influencer marketing agencies and content creators to spread awareness of its guidelines and emphasized its motto of "When in doubt, call it out". The guidelines provide a ready reckoner for different social media platforms –

With 'ASCI social' a webpage dedicated to this cause, a guide for advertisers and influencers to understand its guidelines, and ability to file complaints online and through WhatsApp, ASCI has made

consistent efforts to not only educate all interested parties including the consumers of their rights and obligations, but also establish a redressal mechanism for aggrieved consumers. This coupled

with the recent Consumer Protection Act, 2019 and the draft Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020 clearly establishes the intent of the Indian authorities to keep a strict check on advertisers and social media influencers.

THE JURISDICTION CHALLENGE

What makes this analysis more interesting is the conundrum that surrounds the principles of jurisdiction with the advent of digitalization and globalization. Digitalization and globalization combined have made it easy for a consumer residing in any corner of the world to have access to social media influencers and purchase products from other parts of the globe. Then, the question would arise under which jurisdiction would such social media influencer and the advertiser/brand be held liable? A topic that is heavily discussed amongst academicians and also, judiciaries. In India, landmark judgments such as Banyan Tree Holding (P) Limited versus A. Murali Krishna Reddy and Anr and Worldwide Wrestling Entertainment, Inc. versus M/s Reshma Collection & Ors have drawn heavily from US case laws and combined key laws of jurisdiction under section 19 and section 20 of the Civil Procedure Code, 1908. However, the absence of an established legal framework has resulted in the varied evolution of jurisprudence on this subject matter.

CONCLUSION

Thus, it wouldn't be incorrect to state that the exposure of advertisers and social media influencers on a global scale has also increased. Advertisers and social media influencers will now need to be more mindful of the content from the perspective of the consumers that are exposed to it. With laws and regulations continuously evolving and heavily borrowing from each other, the advertisers and social media influencers will need to keep a watchful eye, while simultaneously ensuring that all standards for protection of consumer interests are also abided by. No wonder they say, with great power comes great responsibility.

WHAT WE DO?

We, here at Naik Naik & Co., regularly advise brands and a variety of influencers on their contracts and on the content created by them. Our services include academic opinions, script reviews and representing our clients in different forums to defend their rights.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.