INTRODUCTION
“With great influence comes great responsibility”. Social media today is a big part of the social fabric. There has been a significant increase in the number of social media influencers since 2020 and with their large following, such influencers holds a very strong social media presence and their remarks and comments about anything can create a huge impact. There has been a shift in the manner of advertising to online advertising. Such influencers have become a huge part of this modern marketing and levering this platform to connect with audiences on a personal level. Herein, factors like trust, reliability plays an important factor between the relationship between the audience and the influencer. Hence, making any comments- be it good or bad will directly reflect on the brand. By making comments, reviews or remarks about any product online, such influencers shape the public perception, which directly affect the consumer market and the brand reputations. Hence, as a result such influencers holds a big responsibility in the digital ecosystem.
However, such power comes with its respective challenges. Making comments without any kind of substantial evidence or reckless claims about products might also mislead consumers. Hence, since social media and influencer plays such a big part of the, there is a huge need for some kind of accountability. The balance of power and responsibility is essential to ensuring trust in this influential medium.
LEGAL FRAMEWORK
The Department of Consumer Affairs under Consumer Protection Act, 2019, made regulation called “The Guidelines for Prevention of Misleading Advertisement and Endorsements for Misleading Advertisements, 2022”. These guidelines establish clear standards for advertising and endorsements. These guidelines mandate truthful and honest representation, prohibit misleading claims and require endorsements to be genuine and based on adequate information or experience. These guidelines mandate transparency in influencer endorsements such as influencers must disclose paid promotions using clear labels like “sponsored” or “advertisement” in their video. They are also required to exercise due diligence, especially when promoting products in sensitive sectors such as health, finance, or the environment. For example, influencers endorsing health supplements must ensure that their claims are supported by scientific evidence. Additionally, they are prohibited from using deceptive visuals or making exaggerated claims that might mislead their followers. Similarly, ASCI (The Advertising Standards Council of India) has also issued guidelines called “Guidelines for Influencer Advertising in Digital Media”. These guidelines ensures openness, accountability, and ethical standards in influencer marketing. Such guidelines also makes an influencer, liable to be open and honest to its users. Both of these guidelines are made to protect consumer interests, ensure ethical advertising practices, and prevent the dissemination of misleading or deceptive information in digital media and influencer marketing.
While on one hand, these guidelines brings some kind of accountability for the influencers, the courts have also given some guidelines regarding the influencer conduct online. In the case of Zydus Wellness Products Ltd. vs. Prashant Desa[1]i, the plaintiff Zydus Wellness is one of the market leaders in food and nutrition products for brands like “ COMPLAN”, “Glucon-D” etc. An Instagram video was being circulated online, wherein the defendant had made derogatory and defamatory statements in reference to the petitioner’s product, which was sold under the trademark of “COMPLAN”. Protection under Article 19 was sought by the defendant, but it was stated by the court that Article 19 of the Constitution of India gives them the right of Freedom of Speech and Expression, but it is only subjected to reasonable restrictions. Herein, the court also took the reference of the judgement, Arvind Kejriwal v. State[2], wherein it was held that ‘In addressing a democratic community, it is crucial to emphasize that freedom of speech, while a fundamental right, does not grant individuals the license to inflict harm or tarnish the reputation of others’.
Herein in this case, it was observed by the court that the defendant making such comments is either a doctor or a nutritionist or was not connected to the health department in any way. The Court determined that simply being a Social Media Influencer does not grant the defendant the authority to speak and/or remark on a matter over which he has no control. The Court found that the defendant’s words in the video were unsupported by any evidence and lacked accuracy, therefore they could not be considered real.
There has been many instances where influencers have taken the support of Article 19 of the Indian Constitution, stating that they have the freedom of speech and expression and hence can make any kinds of comments and statements about such products since such statements are their personal opinion. But the judges such cases such as defamation or disparagement, has always denied such contention. It was also stated in the case of Marcio Limited vs. Abhijeet Bhansali [3]that “it is not disputed that commercial speech is a part of fundamental right guaranteed under Article 19(1)(a) of the Constitution of India, however it cannot be that the fundamental right so guaranteed under the Constitution can be abused by any individual by maligning or disparaging the product of others”.
This case had also ruled against a social media influencer who had critiqued a prominent brand of coconut oil online. The court while giving out the judgments stated that in order to make out a case for slander of good/disparagement plaintiff must show the following;
(a) That the defendant’s statements are false
(b) That the said statements were made and published maliciously/recklessly
(c) That the said statements caused a special damage to the Plaintiff
CONCLUSION
Social media influencers frequently have large followings and a great deal of power to shape public opinion, particularly among their younger, more gullible followers. Sharing truthful and well-informed viewpoints becomes more important as a result of this effect. Hence with such influence, they have a huge responsibility. By weaving the threads of discussion, it can be concluded that yes there are certain amount of guidelines that are made for the influencers conduct. Since such influencers have such a huge power should provide substantial evidence to support the information they spread. By maintaining a balance between influence and responsibility, influencers can uphold trust in this rapidly evolving digital ecosystem, benefiting both brands and consumers alike. For instance In a suit filed with restrain application before Delhi HC by Mondelez India (IP Holder of Bournvita and Tang) against popular influencer “Food Pharmer” who also runs a campaign by the name of “Label Padega India”, wherein, court granted interim injunction against influencer however later on Justice Amit Bansal clarified the injunction and emphasized that the injunction must not be considered as a gag order, and the influencer could make factual statements about Mondelez India’s products but must be non-disparaging in nature. Therefore, a factual statement supported with evidence without disparaging or maligning the product or service is permitted under law.
[1] Zydus Wellness Products Ltd. vs. Prashant Desai 2024 SCC Online Del 7018
[2] Arvind Kejriwal v. State 2024 SCC Online Del 719
[3] Marcio Limited vs. Abhijeet Bhansali 2020(81)PTC 244(Bom)
By Stuti , Ductus Legal
DUCTUS EDGE 