Laws Regarding False and Misleading Advice on Social Media in India: A Focus on Finfluencers and Healthcare Influencers

Introduction

Social media has revolutionized the way information used to be shared. In today’s digital world social media has become a powerful tool in the hands of everyone which is often used to share and advise people. At times, the spread of false and misleading advice on social media, particularly from healthcare and finfluencers influencers, has raised concerns about the potential harm to the public. In response, several countries have enacted laws to regulate online content. For instance, the United States has the Federal Trade Commission (FTC) guidelines, which require influencers to clearly disclose sponsored content. In India too, the responsible bodies have tried to curb the spread of such information by enacting rules to regulate the conduct of influencers on such platforms.

Who Are Health Care Influencers and Finfluencers?

‘A healthcare influencer is an HCP who uses their robust professional experience to educate, spread awareness, and engage with patients about medical information. Healthcare influencers can also be patients, caregivers, or others who offer product testimonials or speak about their health experiences[1]’.

Finfluencers are social media influencers who basically educate people on money management, investments, and the stock market. They generally offer financial advice, share personal experiences related to money management, and guide people on various investment topics. Their discussion includes stocks, budgeting, property, cryptocurrency, and financial trends.

Guidelines for Healthcare Influencers

Witnessing the rise in misleading and false advertisements the Department of Consumer Affairs on August 10, 2023, issued additional guidelines to regulate the conduct of healthcare influencers including celebrities, etc. The objective of releasing such guidelines was to curb misleading advertisements, regulate the conduct of such influencers, and introduce transparency. Below mentioned are those guidelines in detail;

Disclosure and disclaimers

A self-declaration shall be provided by both Certified medical practitioners and health & fitness experts as well asCelebrities, influencers, and virtual influencerswhen sharing information, promoting health and wellness products, or making health-related claims. It should clearly state whether they have certified status or not. For certified medical practitioners, it would act as a tool to engage more audiences. In the case of non-certified,they must also add a disclaimer that their content must not be taken as a substitute for professional advice or treatment.

‘Simultaneously, endorsers must encourage their audience,during such promotions, to seek advice from health andwellness centers or healthcare professionals prior to makingany significant alterations to their diet, exercise, or medicationroutines[2].

Due diligence and fact-based information

According to the issued guidelines, the influencers are required to provide only facts to the public and not exaggerate or mislead them in any manner. They must avoid making false claims. They must conduct proper research before making any claim also in case they recommend any products, they should try to first try the product themselves.

Celebrities and influencers are exempted from compliance with these guidelines when they are providing general information to their audiences or givingsimple advice such as drinking water or getting proper sleep. However, they must comply with these guidelines when talking about a specific health condition or recommending a particular product. Non-compliance in such cases may result in prosecution under the Consumer Protection Act, 2019.

Guidelines for Finfluencers

Below are the proposed guidelines issued by SEBI on the Association of SEBI Registered Intermediaries/Regulated Entities with Unregistered Entities (including Finfluencers). These guidelines aim to regulate the relationship between registered and unregistered entities to provide a more transparent image for the common man which often gets influenced by looking up ads on digital platforms.

‘SEBI-registered intermediaries shall take active measures to dissociate themselves from any unregistered entity using their name, product, or service.
Finfluencers registered with SEBI stock exchanges or AMFI in any capacity shall display their appropriate registration number, contact details, and investor grievance redressal helpline, and make proper disclosure and disclaimer on any posts. They shall also fully adhere to the code of conduct under the terms of their relevant registration.
Entities registered/regulated by SEBI, stock exchanges, or AMFI shall not share their clients' confidential information with unregistered entities.
No SEBI registered intermediaries/regulated entities or their agents/representatives shall, directly or indirectly, have any association/relationship in any form, whether monetary or non-monetary,foranypromotion or advertisementoftheir services/products, with any unregistered entities (includingfinfluencers)’[3].

Section 66D of the Information Technology Act, 2000

India does not at present have any legislation specifically dealing with influencers and digital platforms, however, we do have the Information Technology Act of 2000 which up to an extent covers cybercrimes.

Section 66D of the said act makes cheating by personification using a computer device a punishable offense. The section reads as ‘Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees’[4].

Guidelines By the Advertising Standards Council of India

It is a universally accepted fact that social media is the future which emerges as the strongest market ever and a new career opportunity as social media influencers are growing at a rapid pace. With this new opportunity, new challenges need to be addressed. India needs dedicated legislation dealing with social media and influencing marketing penalizing the spread of false information, demonstrating and making false and vexatious claims.

Earlier too, steps were taken by the Advertising Standards Council of India and Department of Consumer Affairs to regulate social media. The ASCI released the first set of guidelines for influencers to prevent abuse and exploitation of consumer trust with an aim to preserve stakeholder interest. While ASCI is a self-regulatory body and these Guidelines are not binding per se for influencer advertisements in the digital medium, this attempt at self-regulation is a step in the right direction. This set of guidelines was released in May 2021 which were to be complied with by June 2021. Below are some highlights of those guidelines;

The guidelines provided an extensive definition of ‘influencer’. ‘As per the Guidelines, an ‘influencer’ is someone who has access to an audience and the power to affect such audience’s purchasing decisions or opinions about a product, service, brand, or experience, because of their authority, knowledge, position, or relationship with their audience’[5].
According to the guidelines the content creator was obliged to provide a discloser label that specified the type of content. For e.g. Specifying if the content is an advertisement or a sponsored content or a collaboration.
‘ASCI from time-to-time issues lists of non-compliant influencers and brands (which may include advertisers) on its website, for failure to comply with disclosure requirements under the Guidelines, which should be closely monitored and actioned upon by brands, advertisers, and influencers’[6].

ASCI has amended these guidelines requiring stricter adherence of these guidelines by influencers operating in the banking, financial services, and insurance space, such as the requirement of qualifications and credentials if influencers wish to offer investment-related or financial advice.

Additionally, the Department of Consumer Affairs also actively played a role by releasing ‘Endorsement Know-hows’ which provided details of disclosure requirements applicable to influencers, celebrities, etc.It also ‘released an additional set of guidelines, which provide for incremental disclosure or disclaimer requirements for qualified health sector professionals or health influencers, respectively’.[7]

Way Forward

While these guidelines exist along with the Information and Technology Act, 2000 India still needs a robust legal framework to tackle false and misleading advice on social media, particularly from finfluencers and healthcare influencers. Efforts must be taken to enhance regulations, increase public awareness, and improve monitoring to mitigate the risks associated with misleading social media content. Along with legal frameworks and surveillance over digital platforms by concerned authorities, it is the moral duty of Influencers to act responsibly by conducting research before promoting any product They must also adhere to the Laws in enforcement to maintain the trust and safety of their followers. As followers too, one must not blindly believe anything said by an influencer on the internet, they should consult professionals before following any advice or product recommended or promoted by an influencer.

This article is written and presented by Vaidehi Sharma, a BALLB student at Mohanlal Sukhadia University.

[1]https://adfirehealth.com/blog/top-20-healthcare-social-media-influencers-to-look-out-for-in-2024/#:~:text=A%20healthcare%20influencer%20is%20an,Learn%20more.

[2]https://consumeraffairs.nic.in/sites/default/files/fileuploads/latestnews/Additional%20Influencer%20Guidelines%20for%20Health%20and%20Wellness%20Celebrities%2C%20Influencers%20and%20Virtual%20Influencers.pdf

[3]https://www.sebi.gov.in/reports-and-statistics/reports/aug-2023/consultation-paper-on-association-of-sebi-registered-intermediaries-regulated-entities-with-unregistered-entities-including-finfluencers-_75932.html

[4]Section 66D of the Information and Technology Act, 2000

[5]https://www.azbpartners.com/bank/the-regulatory-evolution-of-influencer-advertising-in-india/

[6]ibid

[7] ibid