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Analysis of the guidelines published by the Government for influencers and celebrities in respect of endorsements on social media platforms
The guidelines are primarily applicable on individuals/groups who have access to an audience and the power to affect their audiences’ purchasing decisions or opinions about a product, service, brand or experience, because of the influencer’s/celebrity’s authority, knowledge, position, or relationship with their audience. While theoretically this applicability would be acceptable, it would have been preferable for the government to specify the threshold of ‘access to an audience’ in some manner. While the guidelines attempt at providing a clarification by specifying that creators would be ones who advertise products and services ‘with a strong influence’ on the purchasing decisions or opinions of their audience, it doesn’t specify the criterion/manner for/of determination of presence of a ‘strong influence’ by a creator. In absence of specification of this threshold/criterion, there would be ambiguity on whether or not an individual with minimal followers (for instance 100) would be required to comply with these guidelines or not.
Meanwhile, it goes without saying that the government has adopted a progressive stance by ensuring that these guidelines are also applicable to ‘virtual influencers’ which have been identified as - fictional computer generated ‘people’ or avatars who have realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers. The inclusion of this category ensures that a loophole of avoiding compliances with these guidelines (by adopting virtual avatars by human influencers) is effectively plugged.
Similar to the requirements under the guidelines published recently by the ASCI (Advertisement Standard Council of India), the government has also gone ahead with usage of the concept of a ‘material connection’ (between an advertiser and a celebrity/influencer) to determine the scenarios in which the requirements under these guidelines would require compliance by a celebrity/influencer. The guidelines state that a ‘material connection’ would be something that may affect the weight or credibility of the representation (or a product or a service) made by the celebrity/influencer. The guidelines also provide the following non-exhaustive list of benefits and incentives which would establish the existence of a material connection:
Authored by Gaurav Bhalla of Ahlawat & Associates.
- 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 and awards;
- Any family, personal or employment relationship.
- Pictures – Disclosures should be superimposed over the image such that the viewers are able to ‘notice’. [The Government could have used better terminology to ensure that the disclosures (in an image) are ‘suitably viewable’ instead of simply ‘noticable’ by viewers.]
- Videos - Disclosures should be placed in the video and not just in the description (of the video). The guidelines further require that disclosures should be made in both audio and video format.
- Live Streams – Disclosures should be displayed continuously and prominently during the entire stream.
Authored by Gaurav Bhalla of Ahlawat & Associates.