What every influencer in India ought to know right now
An ‘Influencer’ can be defined as a person with the ability to influence potential buyers of a product or service by promoting or recommending the items on social media. Influencer Marketing has drastically risen in the past decade with the massive growth in popularity of social media. Reports suggest that there has been a rise of 150-200% in earnings of influencers across platforms in the country. Individuals with a prominent presence on social media platforms such as Instagram, YouTube and Facebook are being increasingly approached by brands to use, review and endorse their products and services, in exchange for monetary compensation and exposure. This has become a popular marketing strategy to increase sales and viewership of the product/service, with an increased ‘relatability’ factor. Data suggests that 86% of companies use influencer marketing as a prominent social media marketing strategy and this definitely helps us in understanding the enormity of this phenomenon and its popularity as a form of endorsement.
But the issue with this form of marketing is that there can be dissemination of wrong or misleading information by such influencers on these social media platforms. This has commonly been seen with celebrities endorsing products with misleading claims through Television Ads and print media, like we saw in the Maggi fiasco and also with Fair & Lovely.
It is to tackle this issue of misleading advertisements, that the government introduced new provisions in the Indian Consumer Protection Act, 2019 (“CPA, 2019”) which imposed penalty and liability on manufacturers and endorsers promoting or publishing wrongful and misleading advertisements, including banning the endorser from endorsing any products/services for a year. While popular movie actors like Hritik Roshan and Tiger Shroff are reportedly bringing in lakhs of rupees for a single post on their Instagram page endorsing a brand, these celebrities are well protected with a team of managers and legal advisors ensuring the veracity of these endorsements and their content. However, they are also now subject to strict regulations under the CPA, 2019 to ensure that false and misleading advertisements are avoided and need to be more aware of the brands they are endorsing and claims they are making.
So, what does this mean for influencers in India? To apply the provisions of the CPA, 2019, we need to understand what kind of posts by influencers amount to ‘endorsement’ in order to be held liable for endorsing such ‘misleading advertisements.’ The CPA, 2019 defines an ‘endorsement’ as ‘any message or depiction or verbal statement by an identifiable individual which makes the consumer believe that it reflects the opinion, finding or experience of the person making such an endorsement.’ So, in a general sense, endorsements would amount to those posts of the influencer which either appear as Paid-Ads or Sponsored Posts, Marketing through hyper-links on social media platforms like ‘Swipe-up to buy the Product’ or where the brand themselves determine the posts and its contents the influencer must publish on their respective social media accounts. Most celebrities endorsing products they are in contract with use the last mode, where the brand determines the pictures, videos and wordings of the posts they upload.
Okay, so does this mean an Influencer can be held liable for any and all promotional posts or product reviews of brands they endorse? Well, not really. The important thing for any endorser to remember is that if you’ve researched or learnt enough about the claims of the products you’re endorsing then you’re safe. In the legal world, these two words are the most important words for you to remember – Due Diligence. It basically means that if you’ve done everything you can to ensure that you are giving your honest opinion or review of the product and you have done enough R&R to know that the claims of the products you’re endorsing are actually true, then even if anyone incurs any damage, you will not be held personally liable for it. For Example, if you’re endorsing a certain fairness cream, then make sure the claims you’re making of facial fairness increasing within 4 weeks is actually true, because if it’s not, then you’re not being ‘fair’ to your viewers.
There have been various instances in the past where the endorser has not done their homework about the brands they are endorsing and ended up in legal actions, such as the widely discussed Pierce Brosnan-Pan Parag controversy where Brosnan denied having agreed to endorsing a pan masala product which had cancerous side-effects and Pan Bahar was held accountable for misusing Brosnan’s popularity for their commercial profit. It is in instances like these where the endorser has to conduct Due Diligence on their own or with the help of a legal advisor to ensure they aren’t putting themselves in jeopardy by blindly accepting the claims the brands pitch to them.
So, to conclude, some tips and tricks to keep yourself safe from the devilish arms of the law are here (you’re very welcome):
1. If your post is a result of a paid partnership with the brand, PLEASE DISCLOSE IT.
2. Due Diligence is your new best friend. Check with the brand and do your own research too about whether the claims of the product/service are actually true.
3. Do not mislead your viewers. Be honest and transparent. Even if there is a possible side-effect of the product or if the results of the product vary person to person, do not hesitate to tell people.
4. Read the contract’s clauses very clearly. Make sure the contract clearly tells you how you’re protected by the brand in case of lawsuits against you or the brand and be clear on their expectations from you in terms of publicity and endorsement.
5. Make the difference between your personal opinion about products and your endorsement views very visible and known to your viewers. Using hashtags may also help, such as #ad, #sponsored, #paidpromotion.
The law states that if the influencer/celebrity endorsing the product has done sufficient due diligence before such endorsement that the claims are true, then even if the advertisement results in any kind of legal action against the endorser or manufacturer, the endorser cannot be held liable if such due diligence can be proved.
This post was written by contributing writer, Diksha Arora. Diksha is a final year law student in Bangalore, India moving to Los Angeles soon to pursue her masters in Music and Entertainment Law at the UCLA Law School. She's an absolute music nerd, very passionate about artist rights and holds a keen interest in everything related to movies, music, and entertainment.