The Blue-Tick Paradox: A brief guide for Influencers and Content Creators

1. INTRODUCTION:

The year 2024 saw an exponential rise in influencer economy with Tik Tok being ranked the most downloaded app in the world, closely followed by Instagram.  With about 50% of the total time spent on mobile phones being attributed to social media[1], the importance of these social media apps, the rise of content creators and the extent of their reach, cannot be ignored.

“With great power comes great responsibility” and with a long list of followers comes a long list of precautions that a content creator needs to take while uploading content on social media. In the wake of recent controversy surrounding the top influencers, podcast hosts and social media voices of India, this lesser-regulated sector is grabbing the attention of media and authorities alike.

Albeit the landscape of social media has perpetuated a framework for influencers to freely circulate content on social media platforms, a grudging reality is that often times, the content creators fall into avoidable controversies due to their unfamiliarity with the legal domain.

This article attempts to create a handbook which could serve as a guide for sharing content online and help the content creators understand their rights, should they face any legal action.

Depending on the type of content they create, their style of content and their audience, the content creators can take the following into consideration while publishing content:

A: General content

1. Penal Offences– A piece of content published by an influencer can attract criminal laws if appropriate content restrictions are not put in place. For example, a sexually inappropriate comment, though may seem to be humorous, may be seen as offensive and can attract legal action.

1. 1. Offences pertaining to publication of obscene content: Content creators or influencers must avoid publishing any work/content which would be considered as “obscene”. Under Section 294, Bharatiya Nyaya Sanhita, 2023, any work or content that is “lascivious or appeals to prurient interest” or it could “tend to deprave and corrupt” a person can be considered obscene. With the evolving penal jurisprudence, the Apex Court has travelled from Ranjit D. Udeshi vs. State of Maharashtra[2] which applied Hicklin test, wherein obscenity was to be judged from the lens of ‘standard of a group of susceptible or sensitive ‘persons’, to the decision passed in Aveek Sarkar vs State of West Bengal[3], where the Apex Court applied ‘Roth Test’ and thus substantially diluted the earlier standard and brought the threshold of test of obscenity to ‘an average person perspective or contemporary community standards’. So, what would be considered ‘obscene’ would depend upon the average perspectives from contemporary mores and national standards. Additionally, the content creators are also governed by the provisions under the Information Technology Act, 2000, which prohibits any person from publishing or transmitting obscene material in electronic form which has the effect of depraving and corrupting people. Further, content creators must ensure that their content does not violate public decency standards or spread fake news.
   2. Offences which objectify women: A content creator must be wary of publishing any work/ content which depicts a woman, her form, or body, or any part thereof in such a way, that is indecent, or derogatory to, or denigrating women and thus has the effect of depraving, corrupting or injuring the public morality or morals. In the past, there have been many singers who have been booked under Indecent Representation of Women (Prohibition) Act, 1986, for publishing songs which contain “indecent” lyrics and construe women in bad taste.
   3. Offences against the State: Many comedians and reporters have been booked under the laws of sedition for making remarks against the ruling government of the country. While the law of sedition was very strict under the erstwhile penal code, the recent changes show a paradigm shift in the law whereby the ‘intent’ of the person is taken into account. Under the present law, if a person, knowingly or purposefully makes remarks which can excite rebellion, separatist movement or endanger the sovereignty of India, could be charged with criminal offence. In the wake of upholding freedom of speech, the Rajasthan High Court[4] has recently stated that “laws restricting speech must be narrowly tailored. There must be a direct and imminent connection between the speech and the likelihood of rebellion or secession to invoke such provisions. Legitimate dissent or criticism cannot be equated with sedition or anti- national acts.”
   4. Offences relating to religion: Section 196, BNS (erstwhile Section 154A, Indian Penal Code) prescribes punishment for a person who insults or attempts to insult the religion or the religious belief of a particular class. While several comedians and content creators have faced backlash under these provisions, it is important to mention that these provisions are applicable basis constructive knowledge. Thus, the intention or knowledge to incite the people to violence is a sine qua non for the offence to be made out under Section 196, BNS and the burden of the same lies on the prosecution to prima-facie prove the existence of mens rea on the part of alleged accused[5].This means that while making such statements, if a person knew that such statements could be considered as offensive by a particular religious group, then such person can be charged with the crime.
   5. Defamation: If a content creator, especially with a large subscriber base, makes a false or damaging statement against an individual or business that harms their reputation, then they may be booked for criminal or civil defamation.

2. Intellectual Property Rights: A content creator must ensure that he/she does not use protected content (music, photo, video etc.), without obtaining prior permission from the owner/licensor of such content, and vice versa. This violation often happens when content creators use parts of songs or pictures without the owner’s consent. The Indian legal system protects ‘unique’ and ‘distinct’ works such as copyright in a song, video or voiceover, trademark or brand name. Such intangible rights cannot be used without a license or prior consent. Further, the content creators can also register their own work with the copyright office, if they want a formal protection.

3. Data Privacy: In the event that an influencer stores or manages data of his/her subscribers (whether on digital social media or their personal platforms and websites), then appropriate steps should be taken to manage the said data securely and to keep such data private, as they can be held responsible in the event of breach.

4. Age restriction and viewer discretion: All content creators must ensure that the content reaches the right audience- the right audience would have the right to choose what they can view and they exercise such right. While uploading all content, it is advisable that the influencer specifies that such content is made for a specific age group and viewer discretion should be advised if the content contains scenes of violence, abuse or nudity. Platforms such as Youtube and TikTok provide categories of viewer access when the content is being uploaded. While the influencers thrive on the shock value and viewership of viral content, it can be ensured that the content becomes viral for the right reasons.

B: Specific content on personal finance, stock market, financial advice

5. Financial Influencers: In addition to the above, the financial influencers are also required to abide by the guidelines issued by Securities and Exchange Board of India (SEBI) from time to time. Financial influencers or finfluencers are people who provide information, advice and/or recommendations on various financial topics and have the ability to influence the decisions of their followers. While SEBI does not regulate the finfluencers directly, it has issued directions to all regulated entities (registered stock brokers, mutual funds, registered entities) to not associate directly or indirectly with finfluencers unless they are registered with SEBI. Further, such SEBI regulated entities are also prohibited from sharing real time market data with any third party including finfluencers. In the wake of these regulations, certain finfluencers were banned from securities markets and others have applied for registration with SEBI. It is important to note that finfluencers can still make and publish content related to financial topics if (a) such content is made for investor education; (b) the influencer does not directly or indirectly provide any advice or recommendation; (c) the content creator makes no express or implicit claim on return from any stocks; and (d) such content does not use/ rely upon the market data of 3 preceding months to predict future trend.

C: Sponsored content

6. Advertising guidelines: Influencer marketing is now seen as an essential part of marketing strategies and marketing budget at all organizations. In 2023, the Advertising Standards Council of India (ASCI) had issued guidelines for influencers setting out the criteria for advertisements on digital media. The ASCI guidelines regulate such people who have access to an audience and power to affect their decision or opinion about product, service, brand or experience. THE ASCI guidelines require that all advertisements and sponsored content should be prominently disclosed, such disclosure should be made in a manner which is commonly understood and should be displayed for specified time depending on the length of the video/audio content. The ASCI guidelines also require that a virtual influencer (AI generated avatars) declare that the audience is not interacting with real humans.

7. Consumer protection measures: Instagram has seen a growing trend, where brands team up with influencers to promote their products and services, for brand or product endorsement. In case of such endorsement, a content creator has to necessarily disclose and add a “Paid Partnership” label along with their content. Further, the Consumer Protection (E-Commerce) Rules, 2020 prohibits influencers from promoting products with exaggerated claims or misleading information. Additionally, influencers sharing information on health related claims, have to mandatorily provide clear disclaimers, for ensuring that their subscribers/ audience understand that their endorsement cannot be seen as a substitute to professional medical advice or diagnosis or treatment. Furthermore, content creators are expected to be certain of information and advice they share, thus are corroborated and substantiated by facts.

II. LEGAL REMEDIES:

While the aforementioned precautionary measures can be taken by content creators, in the event there is any legal action against such influencers, following recourse can be kept in mind:

1. Seek legal advice: Many influencers and content creators have faced backlash in the past and consequently issued ‘apology videos’ or ‘apology posts’ to avoid controversy. These apology videos and posts could constitute as admission of guilt and have potential effect of hampering a legal proceeding. Therefore, before taking any action against a legal notice or criminal complaint, it is always advisable to seek legal opinion and guidance.
2. Intermediary action: Any website/portal hosting information or content from multiple users acts as an intermediary such as Youtube, Instagram, facebook, Tiktok. All such intermediaries are empowered to conduct due diligence on the content posted on their platform and may take down inappropriate content on complaint received from a third party.
3. On an FIR being registered: Once an FIR is lodged against an influencer, depending on the allegations in the FIR, a lawyer can suggest whether an anticipatory bail application is to be filed or High Court is to be approached with a quashing petition.
4. Registration of multiple FIRs – In case of initiation of multiple FIRs for the same content, the best way forward is to move an application for clubbing of legal proceedings.
5. In case of immediate arrest – In case of arrest, the following rights should be noted:

• • Every person arrested has a right to be informed of grounds of arrest and has a right to bail[6].
  • For offences less than 7 years of imprisonment, the police officer must record his satisfaction in writing that arrest is necessary to prevent him or her from committing any further offence or to prevent such person from influencing the witness and if such compliance is not met, the arrest is vitiated[7];
  • After the arrest, the police officer is obligated to inform his/her relative or a friend regarding the arrest[8];
  • After the arrest, if a person is interrogated, he/she shall be entitled to meet an advocate of his choice during interrogation[9];
  • It is mandatory that arrested person be produced before the magistrate within 24 hours of his/her arrest[10];
  • In case of arrest of a woman, a male police officer, cannot touch the person of a woman and the right to search is available to a woman police officer only[11].

f. Seizure of electronic devices by Police: The accused cannot be coerced to disclose their passwords or any other similar details of electronic devices seized during investigation, in view of constitutional protection guaranteed against self-incrimination[12].

III. CONCLUSION

This handbook gives the “Dos’ and Don’ts” for the influencer and content creator community, which may be considered while uploading or publishing of content on social media. While this prescriptive guide is only based upon limited scenarios it cannot act as a substitute for taking active legal advice from time to time.

The content creators should get appropriate legal advice for content vetting, understanding their contract terms entered with various businesses, measures for safeguarding intellectual property, compliance with advertising regulations, the way ahead in case of legal action.

Authors: Anju Thomas, Kanchan Modak and Simranjeet Singh

Footnotes

[1] https://www.ey.com/content/dam/ey-unified-site/ey-com/en-in/insights/media-entertainment/ey-state-of-influencer-marketing-in-india-03-04-2024.pdf

[2] AIR 1965 SC 881.

[3] (2014)4SCC257

[4] Tejender Pal Singh v. State of Rajasthan & Anr. Rajasthan HC, S.B. Criminal Misc (Pet.) No. 5005/2024 decided on 16 December 2024

[5] Manzar Sayeed Khan vs. State of Maharashtra (2007)5SCC1; Javed Ahmad Hajam vs State of Mahrashtra and Anr. (2024)4SCC156

[6] Section 47 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

[7] Section 35 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

[8] Section 48 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

[9] Section 38 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

[10] Section 58 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

[11] Proviso to Section  43(1) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

[12] Sanket Bhadresh Modi vs. Central Bureau of Investigation’ Delhi High court, Bail Application No. 3754 of 2023, decided on 18 October 2023.