YouTube and TikTok influencers beware — you can be sued up to ₹10 lakh for misleading your followers

• Followers can sue influencers for lying about liking a product under the Consumer Protection Act 2019.
• Most online influencers in India do not reveal if they’re genuinely endorsing a product or if they’ve been paid to say nice things about it, even if it’s not true constituting ‘misleading advertisement’.
• The fine can go as high as ₹10 lakh.
• A Buzzoka survey finds that it’s not the brands of the influencers at fault, but influencer agencies who don’t wish for influencers to reveal whether or not they’re being paid.

It’s not uncommon to see social media ‘influencers’ flaunt their latest purchases or talk about their favourite brands, online. In fact, it’s an integral part of being an influencer — mostly because fans believe the feedback is honest.

If it’s not, followers are fully within their rights to sue the influencer under the Consumer Protection Act 2019. Fines for misleading advertising can go up to ₹10 lakh for the first offence. Repeat offenders can be charged up to ₹50 lakh.

The reality is that a lot of influencers out there are raking in the big bucks, but they’re not necessarily disclosing that they were paid to endorse a particular product. To make matters worse, there’s nobody is standing at the gates to point out when it’s an ad and when it’s not.

So, a particular ‘anecdote’ about comfy slippers might actually be a paid-for advertisement but followers would be none the wiser.

Last month, two Bollywood actors — Govinda and Jackie Shroff were fined by a court for endorsing products as a part of infommercials which too traverse the invisible line between truth and fiction.

Social media influencers have a wider reach and a deeper trust factor.

When can you sue an influencer?

Disclosure is one way to ensure transparency. Not telling a person that an ad is an ad isn’t technically wrong if you actually and genuinely believe in a product. The problem is when influencers intentionally lie or mislead their followers about how ‘awesome’ a new lipstick is when it’s actually not.

Falsifying a product’s description, giving fake guarantees or deliberating keeping pertinent information from users is against the law if a person is being paid to do it — it falls under ‘misleading advertisements’, according to LexRidge Partners, Advocates and Solicitors.

It’s an especially grave concern in influencer marketing because the relationship between the influencer and the followers has a lot to do with trust. The most popular influencers have their platforms because, at one point or another, they have ‘called it like they see it’ — reinforcing a level of honesty.

Keep in mind that the influencer market isn’t restricted to make-up products and gadgets, even political parties — the most prominent of which is the BJP — uses influencers to power their brand, according to Buzzoka’s Influencer Marketing Outlook 2020.

The middle-man

The fault does not lie solely on the influencer’s shoulders. And, contrary to popular belief, the brands aren’t entirely to blame either.

Between an influencer and the brand, there’s usually a middle man — the influencer marketing agency. They are the ones that don’t want to disclose that an ad is an ad. This is true even if the brand and the influencer don’t have a problem with it, according to Buzzoka’s report.

It’s because marketers see ‘word of mouth’ as one of the key reasons behind an influencer’s popularity. And, there’s no avoiding them.

Brands believe influencer agencies to be the key link between markets and influencers. Moreover, influencers also believe that these agencies are the best way to get more deals under their wing.

The bittersweet taste of success

Currently, India’s influencer market stands at $75-150 million, according to AdLift, a digital marketing agency. And, it’s expected to increase as India’s data prices remain one of the cheapest in the world.

At the same time, brands progressively believe that influencers are compromising on the authenticity of their content by signing up for too much simultaneously. Most agree that stringent rules need to be in place to control content association as per Buzzoka’s report.

And it may well be. The Advertising Standards Council of India (ASCI) is working new guidelines that will ensure that social media influencers have to disclose if they’re promoting a product.

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