The Advertising Standards Council of India (ASCI), on June 01, 2021, released Guidelines for Influence Advertising on Digital Media. The Draft Guidelines were initially released on February 22, 2021, for consideration and comments from stakeholders including advertisers, agencies, influencers, and consumers. The new Guidelines will be effective in India from June 14, 2021.

The Guidelines have been formulated keeping in mind that consumers tend to see posts on digital media without realizing the commercial intent of such posts and that becomes inherently misleading, and in 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 ASCI Code.  

The Guidelines define an influencer as “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.”

According to the new Guidelines, influencers (or their representatives) must clearly label their posts (from a list of approved labels) on digital media as being “editorial” or “independent user-generated content”, i.e., whether or not their content is an advertisement. “Advertisement”, “Ad”, “Sponsored”, “Collaboration”, “Partnership”, “Employee”, “Free gift”, etc., are the approved labels. The disclosure should be in English OR in the language of the advertisement itself. A virtual influencer must additionally disclose to consumers that they are not interacting with a real human being.

Such disclosure must be made if there is a Material Connection between the advertiser and the influencer. The Guidelines define Material Connection as, “Any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer. Material connection could include but is not limited to benefits and incentives, such as monetary or other compensation, free products with or without any conditions attached including those received unsolicited, discounts, gifts, contest and sweepstakes entries, trips or hotel stays, media barters, coverage, awards or any family or employment relationship, etc.” However, if the influencer or its representative is simply posting about a product or service without any material connection with the advertiser, they do not need to use the disclosure labels. Responsibility of disclosure of material connection and also of the content of the advertisement is upon the advertiser for whose product or service the advertisement is, and also upon the Influencer.

The Guidelines explicitly define how these disclosure labels may be used. The disclosure label must be upfront, such that the user need not click on options such as “see more.” Blanket disclosures such as “link in bio” will not be considered adequate. Disclosure should not be buried in a group of hashtags or links.

If the advertisement is a picture or a video, such as an Instagram/Snapchat Story or post without a text section, the label needs to be superimposed on the picture. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 3 seconds. For videos between 15 seconds – 2 minutes, the disclosure label stays for 1/3rd the length of the video. For videos longer than 2 minutes, 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 live streams, the disclosure label should be announced at the beginning and the end of the broadcast. If the post continues to be visible after the live stream is over, appropriate disclosure must be added to the text/caption. In the case of audio media, the disclosure must be clearly announced at the beginning and the end of the audio, and before and after every break that is taken in between.

Initially, concerns were raised about how ASCI plans on monitoring violations of these Guidelines. Accordingly, ASCI has employed a French technology provider, Reech. Manisha Kapoor, Secretary-General, ASCI commented, “The Reech Influence Cloud platform uses Artificial Intelligence to identify lack of disclosure on posts of a commercial nature on social media. Machine learning algorithms and pattern searching Regex (Regular Expression) maximize accuracy. As part of ASCI’s increasing focus on digital content, we will continue to deploy advanced technology solutions to keep track of advertisements that violate the ASCI code.”

 The new Influencer Guidelines by ASCI have been well received by advertisers and influencers alike. The Guidelines are being hailed as the need of the hour, given India’s booming influencer market of an estimated Rs. 500 crores (more than 6 billion USD). Dolly Singh, a leading digital influencer in India commented, “The digital marketing space is growing rapidly and so are its participants. This is the right time to have a codified system of disclosure. I fully support this move by ASCI because it will result in viewers having even greater trust in influencers like me.”