Misleading Advertisements in the Influencer Era: Who Should Be Held Responsible?

I. Introduction

Social media has a significant influence in modern society and has the power to make a product popular overnight. In social media world the term “influencer” plays a major role in today’s marketing business and has gained widespread global value. Earlier people were dependent on TV, Radio and newspapers for the product but now the young generation is more inclined towards social media platforms like Instagram, snapchat, Reality shows, youtube etc. Companies rely on ideal influencer to run advertisements and gain audience attention on such platforms.

The social media platform mentioned above started for entertainment purpose, but it soon turned into a marketing platform. Youngsters get so attached to ideals from their public image  and lifestyle videos and try to become like them. Because of that platform’s power to create a sense of closeness towards digital person, the consumer starts believing recommendations as genuine and purchase it without a blink with intention to look same as their ideals. Many influencer do not reveal paid promotion and falsely claim it is genuine advice to gain the trust of audience but back in the hand this script was provided by the brand. Does speaking a lie about product by influencer to gain audience trust comes under misleading advertisement?

Widespread growth of influencer market also raised concern because the major target audience is youngsters, fake recommendation has potential to create a bad impression on buyer’s health, image and mental peace when they do not get same result that was claimed by their ideals. India has multiple mechanism to deal with consumer rights and misleading advertisements like consumer protection act 2019[1], CCPA guidelines[2] and ASCI guidelines[3].

This article is going to examine the challenges come with the growing influencer market and policies available for the same. It will examine the practical implementation of guidelines and accountability of influencers. The article attempt to address balanced approach without effecting the freedom of speech. With the changing nature of advertisement market the main question emerge are-

Whether a influencer should be held liable for misleading promotion or they should be viewed merely as promoters?

Whether existing legal mechanism are sufficient to regulate online advertisement market?

II. Why influencer market take over the internet?

The influencer market has become a trend in a society. They run promotional strategies to make influencer appear as a real person instead of scripted online personality. This particular market become beneficial for companies because it is cheaper and gives effective results with minimal spendings. The platform has a variety of influencers from beauty to finance influencers and many more. With the availability of thousands of options for different fields and product the platform has turned into most influential advertising marketplace. With rapid growth and influence, the question of accountability, lack of strict regulations and consumer protection also arises.

III. Misleading advertisement and their impact

Misleading advertisement is something that creates a false impression in consumer’s mind by promoting something with false result claims[4]. They deceptively present the product, exaggerating the results. If the influencer claims to get slim by drinking a certain product within a week but in fact it was a paid script and was not revealed as a paid promotion. All of these factor together leads to misleading advertisement. Deception is different from promotion, in deception influencer creates a false impression of product among people. This practice can affect people in multiple ways such as financial, emotional, health loss etc. The emerging concern is whether hiding sponsorship and facts of product by influencer is misleading act or not?

People start trusting influencer more than traditional advertisement because the former appear relatable and closer to the audience. Followers watch their daily routines and lifestyle continuously which creates a sense of personal connection. Due to this trust consumer often view product recommendations as genuine experience rather than paid promotions.

IV. Impact of misleading advertisements on young consumers

Young people are the main target audience of digital market. Youngsters are heavily invested in social media world and because of this they become the most vulnerable section of the digital market. Influencer lifestyle and recommendation build unrealistic expectation among them. Beauty, fitness, and lifestyle promotion create standards that may affect youngsters body, image and confidence. Since influencer become their role model misleading advertisement, fake opinion, false claim and hidden promotion create a greater negative impact on young minds which is the real matter of concern. One of the concern in the influencer market which impact youngsters is the fear of missing out (FOMO). Social media constantly make trends and make ideal image of particular product to influence consumers. Under this pressure of fitting in the society and groups youngsters tend to follow these trends by changing their daily life activities to make social media accepted body etc. It create a pressure to be socially relevant because of influencer marketing strategy. Such strategy introduces impulsive buyer behaviour. Sometimes these trends can turn harmful when it create wrongful obsession and mental pressure on youngsters. Running trends is not wrong but the product should be healthy and legal in the market that need to be monitored. When it comes to young mind the issue is not only about misleading advertisement it also involves social and mental concern of youngsters.

V. Legal framework against misleading advertisement in India

With growing misleading advertisement which has potential to affect consumers through hidden sponsorship and deception, our system provide consumer protection guidelines, laws and acts to protect the interest of consumers which are mentioned under –

A. Consumer Protection Act, 2019

This act protect people against misleading advertisements. The consumer protection act recognizes advertisement have the power to create false impression of product, therefore contain provisions to stop these unfair trade practices.

CCPA 2020 provide power to do investigation against misleaders and take the required action against them[5].

B. CCPA Guideline and regulation of influencer Endorsements

With the increasing influencer market, guideline have also been introduced for new concern arising out of it. The CCPA Guidelines for the prevention of misleading advertisements and endorsement 2022 were introduced[6]. These guideline require influencer to disclose paid promotion and sponsorships so that consumer can distinguish between promotional content and genuine opinion.

Health and Wellness influencer guidelines, 2023 were introduced[7] to address concerns related to health and fitness promotions. One of it include to add disclaimer by the fitness influencer while giving advice to avoid treating such statement as expert advice by people.

C. ASCI in Self Regulation of digital advertisements[8]

The advertising standards council of India also issues guideline for influencer advertisement, direct them to clearly disclose sponsored content. However, the ASCI gives guideline and people follow it voluntarily there is no strict punishment behind this.

D. Judicial approach towards misleading advertisements

Indian court in various judgement recognize the ability of advertisement to influence the consumers decision. They have a significant impact on their life and hence, misleading advertisement and consumer protection are repeatedly addressed by courts.

One example of this is Indian Medical Association & Anr. v. Union of India & Ors. (2022)[9], the supreme court examine the concern arise of misleading advertisement and their impact on consumers’ health made by Patanjali ayurveda. Court emphasis the importance of honest advertisement and consumer protection in this case. The highlight of this case is self declaration certificate before broadcast. Hence, the case reflect the judicial approach towards misleading advertisement, it is not treated as merely market strategy but holds accountability and emphasis on protection of consumer rights.

Another development can be seen in Sensodyne misleading advertisement case realating to consumer health care matter. Before the Court question is about certain claims made during advertisement without any proof and evidence to support the same. Court emphasised to promote such claims in advertisement only with certain proof and evidence. This suggest the judicial attitude towards misleading advertisement and false claims.

These judicial developments and many other suggest the court view regarding misleading advertisement. It held accountability rather than escaping in the name of marketing strategy. Such observation become more important in observing the stance of influencer market culture.

VI. Are Social Media Influencers mere promoters or responsible actor under the law?

In the era of asking “Link” for products where the market is highly based on influencer recommendations the individuality of influencers plays an important role because people actually believe them when they claim to personally use the product which they promote. Followers idealise them and get influenced by their choices and opinions. The question highlighting is should individual having such influence over consumer also bear responsibility for the content they promote?

One view suggests that since influencers are getting payment, products and other benefits through their advertising work. Such influencers hold strong power to change the mind of consumers, they may be expected to act with due diligence before promoting product. It is argued that influencer may be expected to re-check their script and take accountability for promotion and ensure transparency of sponsorship. They may be expected not to mislead consumer by claiming sponsored product as non-promotional product. Under such situation some decree of responsibility from the influencer side appears justiciable.

There’s another view also in the market who believe it is not possible for influencer to gain complete technical knowledge of product. They are simply popular people who are doing their job of following the script. The companies alone may be held liable for providing false narrative or script for their product because they are well versed in the knowledge of the same.

Influencers are no longer viewed as only content creators they become digital brand with strong hold in the market. They have the power to collectively make one brand worthy and other irrelevant at the same time. Parasocial relationships are some of the distinctive aspects of influencer marketing, which can be defined as emotional ties formed one-sidedly by audiences that perceive themselves as having personal connections with influencers even without personally meeting them. By means of vlogs and other types of content posted regularly, influencers tend to seem more friendly and accessible than celebrities who use their services to advertise brands.

Since influencers are able to create such an emotional bond with audiences, the latter might trust their recommendations. In fact, unlike traditional ads where people know about the promotional purpose behind it, influencer advertising tends to seem authentic and genuine. As a result, consumers are influenced by this type of advertising when making their decisions.

The issue is not only about whether influencers should be treated as promoters or accountable actors. Rather the larger challenge is to maintain a balance between influencer responsibility towards their followers and limited limitations in the influencer era.

VII. Challenges in regulating influencer driven advertisements

The issue has been discussed but challenges come with it also need to be addressed. One major challenge is the enormous number of influencer working on digital platform. Online influencing is something that almost anyone can pursue from home, and in many situation individual can run their account without even revealing their identity. Therefore, it becomes very difficult to track and monitor thousands of influencers at the same time unless the issue gain public attention.

Another challenge is indirect promotion and hidden sponsor. Such promotion are difficult to detect and harder to regulate. One more challenge is to distinguish between personal opinion and paid script because influencer may claim that they are merely exercising their freedom of speech and expression rather than commercial promotion.

Challenge of continuous changing nature of digital platform. If one law is made to monitor the particular type of video another day new technological reform can take place like short videos, snapchats, trial videos and many other forms. The challenge is to make policy and laws that cope with new forms of digital market.

Even after having multiple laws and guidelines, the process of implementation still have practical hindrances that are yet to be fixed.

A. Consumer awareness and digital literacy

Awareness of consumer is equally important to address misleading advertisement in the influencer market. The audience blindly follow recommendation without any verification and cross questions. So, promoting consumer awareness become really important to protect them. Consumer should be encourage to distinguish between real and sponsored recommendation, they should be advised to cross verify before purchasing. Awareness campaign and ads should be conducted to make consumer aware about advertisement technique of digital world. A informed audience may reduce the impact of deception and strengthen consumer protection and their rights.

B. Need for strong regulatory reforms and accountability

Although India has several laws regarding this issue, the implementation part still requires reforms. Rules such as putting a disclaimer on every paid or sponsored product may help reduce the issue of hidden promotions. In the advertisement market it is not the only responsibility of company and influencers, consumers should also behave responsibly with awareness and mechanism should be adopted to spread awareness among consumers.

With rapid technology and changing form of market influencing market may likely to take over the digital market. Existing laws and guideline cover concern of misleading and transparency but future reforms are needed to monitor influencer world and clearer liability rules with limitations.

Penalties may be imposed for hidden promotion and misleading information presented to consumers. CCPA guidelines also require strict implementation policies to ensure effectiveness in practice. At the same time, a balanced should also require between freedom of speech and regulation policies, since freedom of speech[10] is our fundamental right that need to be considered while putting limitation on influencers.

The objective should not be to ristrict the influencer but to stop false claim and ensure accountability in market.

VIII. Conclusion

The Influencer market is rapidly growing and has become a reliable source for product promotion. Brands are shifting from traditional method to influencer world as it creates a sense of connectivity with the consumers. The face behind the advertisement looks real and similar to audience and thus it has power to create real impact on consumers. With more influential power the concern of misuse by misleading information also increased. India has guidelines, laws and courts to tackle this matter but the implementation process still needs improvement. Hidden sponsorship and paid recommendation while claiming it personal opinion are the new emerging concerns that need monitoring rules to tackle. Judicial developments and regulatory approaches emphasize on accountability in digital practice. It create major impact on young minds by creating trends in society.

There’s a need for new future reforms with new technological growth but the objective should not be to restrict the influencer market but to ensure transparency, accountability and protection of consumers rights while maintaining the balance between limitation laws and freedom of expression.

References

[1] Consumer Protection Act 2019

[2] Central Consumer Protection Authority, Guidelines for Prevention of Misleading Advertisements and Endorsements (CCPA 2022)

[3] Advertising Standards Council of India, Guidelines for Influencer Advertising in Digital Media (ASCI 2021)

[4] Consumer Protection Act 2019, s 2(28)

[5] Consumer Protection Act 2019, s 10

[6] CCPA Guidelines (n 2)

[7] Ministry of Consumer Affairs, Health and Wellness Influencer Guidelines (MCA 2023)

[8] ASCI Guidelines (n 3)

[9] Indian Medical Association v Union of India [2024] SCC OnLine SC 335

[10] Constitution of India 1950, art 19(1)(a)