This article has been written by Ms. Anchita Niranjan Chavan, a 3^rd year BLS LLB student at Oriental College of Law, Navi Mumbai.

INTRODUCTION- 

Social media advertising is a type of digital marketing that utilizes social networks such as Facebook, Twitter, and Instagram to deliver paid ads to your target audience. Social media ads are a quick and effective way to connect with your consumers and boost your marketing campaigns. By leveraging various data sources, advertisers are able to hyper-target their audiences and deliver personalized content based on demographics and user behavior. When an audience is introduced to a brand on social media, advertisers may see more interactions and conversions. 

Social media ads are also cost-effective, offering the potential for high rates of return. In the online world, it is getting increasingly complicated to get your message noticed, as user attention is increasingly becoming a scarce resource. Social media advertising is significantly impactful as it allows you to deliver your message to your ideal buyers throughout their purchase journey. For instance, before the release of a new product, a B2C brand can run a brand awareness campaign to garner pre-buzz. Similarly, a B2B organization can re-engage their audience through re-marketing campaigns to sell a high-ticket product.

As the new Intermediary Guidelines and Digital Media Ethics code come into force to curtail fake news and limit messages that lead to law and order issues, the regulation itself has become the victim of fake news around it. The most pernicious of such fake news being peddled is that the government is now going to have access to all messages and is going to check all messages. There is also a message doing the rounds on Whatsapp that states that the Whatsapp messages will now have three tick marks, with the third tick showing that the government has read it, and if the colour of the third tick is red, it would imply that the government has taken offense to it. This couldn’t be any further from the truth.

It is high time that we push through much-needed regulation to protect ourselves from the negative side of social media, so that social media can further flourish in the country, with all the benefits of free speech and efficient commerce that it brings in.

LAWS RELATED TO SOCIAL MEDIA ADVERTISING-

In February 2021, ASCI had released a draft set of guidelines for Influencer advertising on digital media for stakeholders’ consideration and comments. The deadline to send in comments to the draft guidelines was then extended by ASCI to 21 March 2021 (from 8 March 2021). The final Guidelines have now been released by ASCI and came into effect on 14 June 2021.

ASCI’s goals include monitoring, administering and promoting standards of advertising practices in India with a view to: ensuring truthfulness and honesty of representations and claims made through advertising and safeguarding against misleading advertising.

As digital media becomes increasingly pervasive and more consumers start to consume advertising on various digital platforms, it has become important to understand the peculiarities of these advertisements and the way consumers view them. With lines between content and advertisements becoming blurry, it is critical that consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain.

Per the Guidelines, all posts published by social media influencers or their representatives on digital media have to carry a disclosure label as per the specifications set out in the Guidelines, identifying such posts as advertisements. The criteria identifying when there is a requirement of such disclosure have also been set out in the Guidelines. Such instances include situations where there is any material connection between the advertiser and the influencer. ‘Material connection’ has also been specifically defined in the Guidelines to include even 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. A broad definition of ‘digital media’, encompassing all plausible forms of digital content and platforms for delivery of such content, has also been laid down in the Guidelines. The Guidelines also mention that no disclosure would be necessary if the influencer is simply posting about any product or service that they may have purchased and liked without any material connection with the advertiser. However, if any material connection at all exists, a disclosure is required even if the content of the post is an unbiased evaluation or originating independently from the influencer.

These regulations and guidelines have generally been adopted at the discretion of the advertisers, given that ASCI is not a statutory authority and therefore ASCI’s guidelines, though recognized under certain legislations and judicial bodies, do not have statutory force.

Influencers who have a material connection with advertisers need to disclose Their relationship. Once you have a material connection with the brand, e.g., you’ve been paid to promote a product or you’re employed by the company, you need to disclose your relationship in your sponsored posts. The reason behind this is obvious: Without this disclosure, consumers may be misled. And it doesn’t even have to mislead all of your audience. Under the law, content is deceptive if it misleads a “significant minority” of consumers.

KEY PROVISIONS UNDER THIS GUIDELINES ARE-

1. Conditions for non-misleading and valid advertisements- The guidelines lay out a descriptive set of characteristics which deem advertisements valid and compliant with law, and which require advertisements to inter alia.

2. Conditions for bait advertisements- Bait advertisements are generally used for advertising lesser interest rates in the case of a mortgage, loan, or investment product. The guidelines define “bait advertisements” as advertisements which offer products/services at low prices to attract consumers. While the guidelines do not restrict the publication of bait advertisements, they set out the following specific conditions to be followed by advertisers. The advertisement should not entice consumers to purchase goods/services without a reasonable prospect of selling goods at the price offered. The advertiser should ensure there is sufficient stock of goods/services to meet foreseeable demand generated by the particular advertisement.

3. Prohibition on surrogate advertisements- The guidelines define “surrogate advertisement” as advertising any product/service which is prohibited by law by portraying the advertisement to be an advertisement for other goods/services, the advertising of which is not prohibited by law. Generally, surrogate advertising takes place in case of goods such as alcohol, tobacco, drugs, etc.

4. Free claims and children target advertisements- The guidelines have also set out detailed due diligence requirements, duties of advertisers, requirements to impose disclaimers and disclose material connections. The guidelines restrict free claims advertisements & Children targeted advertisements. An advertisement shall not describe a good or service as ‘free’, ‘without charge’ or other similar terms if a consumer has to pay anything other than the unavoidable cost of responding to the advertisement and collecting or paying for the delivery of the item.An advertisement shall not describe a good or service as free. Advertising specifically to children is unethical because they have little or no money of their own and have to persuade their parents to buy the products for them.

CASE LAWS-

In the case of Nai Dunia newspaper, the advertiser’s assurance of compliance was still awaited by ASCI. The advertisement of Nai Dunia stated, “This remarkable growth rate of Nai Dunia can perhaps be an indication of the future, as much as that of current value”.   The advertisement is considered misleading by CCC as per Chapter I.4, since, though the growth rate of Nai Dunia and Dainik Bhaskar may have been correctly depicted, the absence of a base index renders the advertisement misleading.  

The Sprite TVC shows “two explorers captured by a tribe who are, apparently, cannibals and appear, quite distinctly, African.  One of them manages to get out of it by bribing them with a soft drink bottle”. CCC concluded that the ad projects negative stereotype of Africans and hence violates Chapter III, 1 (b) of ASCI which doesn’t permit derision of race, caste, colour, creed or nationality. This led to the TVC being withdrawn by the advertiser.

CONCLUSION-

The government in India has issued new endorsement rules which state that sponsored content must be clearly labelled by social media influencers as such or they will have to pay a fine of up to Rs 10 lakh (USD 12,349) for the first time and a repeat offender will have to pay fine of up to Rs 50 lakh (USD 61,746) or face a ban of up to six months. For advertisements on digital media to be honest and not violate ASCI chapter 1 on misleading advertisements, “Guidelines for Influencer Advertising on Digital Media are created. In the case of audio media, the disclosure label must be clearly announced at the beginning and at the end of the audio.It is recommended that the contractual agreement between advertiser and influencer carries clauses pertaining to disclosure, use of filters as well as due diligence. ASCI will issue a notice to both brand owner and influencer for violation of any guideline in the case of a consumer complaint or suo motu cognizance of a potentially objectionable advertisement.In the case of disappearing posts, a screenshot with timestamp would suffice as prima-facie evidence of the advertisement having been published

REFERENCES- 

• https://www.healthychildren.org
• https://asci.social
• https://www.natlawreview.com
• https://blog.ipleaders.in
• https://en.wikipedia.org

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