Fashion Influencers and Law

Fashion influencers and Fashion enthusiasts love Instagram when it comes to getting inspiration for outfits. With Instagram reels have turned into an endless virtual runway, the fashion hauls and #OOTD stories and posts have not only fulfilled our love for aesthetics but have even upped our wardrobe game by exposing us to the latest trends. 

According to a 2021 report by Global Web Index Social Media influencers are very popular among Gen Z, the report revealed that 28% of young adults falling in the age group of 13-23 across the globe follow influencers to keep up with trends.  Even the Millennials were not far behind, with almost 23% of adults ages 24-37 were found to be following influencers. The survey also revealed that fashion and beauty are some of the biggest niches in the world of influencers and this is the reason Instagram Fashion influencers have a huge following.

As the famous quote goes, with great power comes great responsibility. The same applies in the context of social media influencers; the greater the influencer bigger the responsibility. Influencers have a responsibility towards the audience that follows them and to keep a check on this, certain legal frameworks have been implemented.

Guidelines by Advertising Standards Council of India (ASCI) 

On 27 May 2021, final guidelines for Influencers were released by the  Advertising Standards Council of India which was to be applicable from 14th June 2021. The term influencer was defined by the ASCI in a broad sense as “someone who has 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 authority, knowledge, position, or relationship with their audience” This definition also included Virtual influencers that are computer-generated ‘people’ or avatars like Miquela Sousa, a 19-year-old intelligent robot in LA who has 3 million followers on Instagram 

 The main purpose of these guidelines was to ensure a customer’s interests are protected by distinguishing between promotional content and other content of the influencer.  This was done to prevent the manufactures and brands from using influencers as a source of marketing their products without giving a heads up to the consumer that the said promotion or review is a paid one. After the implementation of the guidelines, social media influencers are required to put disclosure labels as per the specifications of the guidelines to identify paid posts as advertisements. This includes “Material Connections” which is any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer. This includes but is not limited to benefits and incentives like monetary compensation, free products, hotel stays, awards, family or employment connection between the influencer and advertiser etc. 

The placement of the disclosure should be such that it should be easily visible and in a prominent, hard to miss manner and not hidden in hashtags. The disclosure labels that can be used are “Advertisement”, “Ad”, “Sponsored”, “Collaboration”, “Employee”, “Free Gift.”  A virtual influencer would be required to disclose to the customers that the interaction is not with a real human being.

It is also advisable that influencers carry out Due diligence themselves to review that the advertiser is in the position to substantiate the claims that are being made in the advertisement. 

The Code for Self-Regulation of Advertising by ASCI

The code aims to control the contents of advertisements so that they are not offensive and to ensure that the representations made are true and honest. The code applies to advertisers, advertising agencies and media.  lays down various guidelines to ensure there is no discrimination based on these advertisements like` the Guidelines of Advertising for Skin Lightening or Fairness Improvement Products, Guidelines for Advertising of Educational Institutions and Programs etc. A detailed Complaint Procedure is also aid out to cater for redressal. 

The Consumer Protection Act, 2019

This bill aimed to move further towards caveat venditor from the prior existing notion of caveat emptor. The bill proposed the establishment of a regulatory authority called the Central Consumer Protection Authority (CCPA) powers of enforcement, unlike the existing Consumer Protection Councils which are only advisory bodies. It was the very first legislation that emphasized targeted advertising, market campaigns through influencers and celebrities. The changes brought celebrities and influencers under the purview of services and hence they could be held liable for advertisements that could harm the consumers.

The CCPA aimed to promote, protect, and enforce the rights of consumers qua misleading advertisements and unfair trade practices. They will have the power to initiate class-action suits including recall, refund and return of the product. It is a well-known fact that the courts in India are overburdened with existing cases and hence Mediation as an alternative method for dispute resolution can be implemented if agreed by both parties.  The bill placed importance on Celebrities and promoters to check the validity of the claims made by the advertisement before promoting them. In the past we have seen many celebrities face backlash due to the lack of diligence for example; Amitabh Bachchan in the Maggi case, MS Dhoni in the Amrapali case and so on. The bill did not just affect Bollywood A-listers but also influencers across various platforms who now needed to be careful of what they are endorsing. In case of failure to comply a penalty from 10-50 Lakhs can be imposed in case of failure to comply with the rules. A ban from future endorsements can also be imposed for a period of 1-3 years. 

Judicial Precedents

In the recent case of Marico Limited v Abhijeet Bhansali, a YouTube video by an influencer was taken down for undervaluing Marico’s Parachute Coconut Oil which led to damage to the reputation of the company. The influencer used certain questionable techniques and claimed that the oil was not pure. The court observed that the influencer was promoting competitors of Parachute while portraying Parachute coconut oil in a bad light. In the case of Reckitt & Colman v Kiwi T.T.K. Ltd. the court held that:

“A manufacturer is not entitled to say that his competitor’s goods are bad so as to puff and promote his goods. It, therefore, appears that if an action lies for defamation, an injunction may be granted.”

Even though the influencer tried to take the defence under article 19(2) of the constitution and said that he had a right to freedom of speech, however, the Bombay High Court ruled that as he was comparing it oil with other competitors it is commercial speech and relied on the Supreme Court judgement in Tata Press Limited v Mahanagar Telephone Nigam Limited  that commercial speech that is misleading is not protected under Article 19(2) of the constitution. The court ordered the removal of the video from YouTube to protect the plaintiff- company from irreparable harm and injury 

How can Influencers avoid liabilities?  

1. Social media influencers ought to ensure the product they are promoting does not violate or hurt any sentiments of a particular section of society. 
2. A background check and research about the company can go a long way in building trust and confidence 
3. It has become extremely crucial for Influencers to disclose any paid promotions, advertisements to their customers and followers on social media. 
4. Along with the disclosure message, relevant hashtags like #collaboration #sponsored #paidpromotion #ad can help the customers to know when a product is based on personal opinion and when it is a part of an advertisement. However, the disclosure for an advertisement should not merely be just these hashtags as they are easy to miss. 
5. Having a contract in place is always advisable, this is to ensure that there are no ambiguities in the agreements and there is proof of too.
6. Transparency is the best policy; a deprecating statement about a product they have not tried or used and giving a fabricated review of the experience is not allowed by law. 
7. Due diligence, background checks, and personal research are non-negotiables for influencers now. 

Bibliography

ASCI. Guidelines for Influencer Advertising in Digital Media.

Economic Times. “The celebrity and the Consumer Protection Act.” https://brandequity.economictimes.indiatimes.com/news/marketing/the-celebrity-and-the-consumer-protection-act/77189902.

Khaitan and Co. “ASCI Releases Influencer Advertising Guidelines For Digital Media.” https://influencermarketinghub.com/influencer-marketing-benchmark-report-2021/.