The Advertising Standards Council of India (ASCI) is making sure that June 14 onwards, there is a disclaimer for all sponsored content.
But the question is: what if brands and influencers flout the new guidelines?
“While there is a mechanism under the guidelines to file complaints against non- compliance, there is no mechanism to enforce compliance of any recommendation/decision. That has been the case with ASCI guidelines for a long time, be it social influencers or otherwise. However, they have had engagements with government bodies and have the ability to report non-compliance to statutory bodies or government departments,” said Nishad Nadkarni, Partner, IP, Khaitan & Co, a corporate law firm.
Explaining this further, Rajat Prakash, Managing Partner, Athena Legal, said: “In case of violations, while the influencer guidelines do not specify a redressal mechanism, a complaint can be filed under the Code of Self-Regulation of ASCI (ASCI Code) before the ASCI by the general public, including government regulators, consumer groups, intra industry players or a suo moto action by ASCI itself.”
After a complaint is filed, the same is then adjudicated upon by the Consumer Complaints Council (CCC) coming under ASCI through prescribed process under the ASCI Code which allows the creator/advertiser to contest the same by submitting their reply, evidence in support thereof.
After a complaint is filed, what action can ASCI take?
“The ASCI Board and the Consumer Complaints Council (CCC) promote self-regulation and their decision is advisory in nature. There is no legislative authority with ASCI to seek penalisation of violations of its guidelines and decisions, or enforcement of the same,” said Prakash.
While ASCI is a self-regulatory body, Nadkarni said “there is a good amount of weightage given to ASCI regulations for advertisements and now that the Central Consumer Protection Authority (CCPA) has also come into force, the regulation is likely to get more stringent. All these taken together are bodies which have some teeth. What ASCI can do and have done in certain cases is that it gives intimations to ministries or government departments with regard to non-compliances."
Though ASCI is not a judicial or statutory body, courts have taken a view that ASCI members are contractually bound to comply with the guidelines. However, there are conflicting views.
“Like, if you are an ASCI member, you are bound by the guidelines. Therefore, even when non-members take recourse to legal proceedings, courts have, in some cases, like the Delhi High Court, not interfered saying that these ad agencies and TV companies are members and they are bound by ASCI regulation, even if the advertising manufacturer is a non-member. So, the enforcement is in one sense also indirect. So, it is not completely toothless as the courts have taken their guidelines into consideration," said Nadkarni.
Influencers, brands worried about new guidelines
This is why Neel Gogia, Co-Founder, IPLIX Media, an influencer marketing and talent management agency thinks that if a content creator flouts the guidelines repeatedly, ASCI has the power to make sure the content is taken out.
He also thinks that ASCI has the power to even ban a creator on a particular social media platform.
However, Prakash pointed out that social media platforms have their own policies when it comes to taking out content, and it remains to be seen if they would implement ASCI directions.
Along with influencers, Gogia said that brands are curious to know how they have to tweak their campaigns, with the new guidelines for influencer marketing coming into force.
“For brands, influencer marketing is just a part of their marketing budget. So, if something comes up, it will be on the whole brand. Hence, brands are going to test waters,” he said. Yet, Gogia doesn't think that budgets for influencer marketing may be impacted.
“There is no better option currently for brands. They are doing digital spends that have to be declared as an ad. On traditional mediums also, it is an ad. So, we'll have to see how it will pan out in the next two months," he added.
While it is wait and watch in terms of the implementation of ASCI guidelines, Nadkarni pointed out that the ASCI recommendations have been challenged from time to time, and, in appropriate cases, their operation has been stayed.
“It is a bit complex because it is self-regulation. Therefore, there is a good amount of grey area,” he added.
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