[This post has been authored by Vivek Sharma, a student at ILS Law College, Pune.]

 

“The Defendant is falling under a nascent category of individuals, popularly known as “social media influencers” – J. Kathawala.[i]

This is a sentence from a debated judgment pronounced by a single judge bench of the Bombay High Court which recognized Social Media Influencers (“SMIs”). The Court resolved the dispute by granting an order in favour of Marico Limited (plaintiff), which was modified in an appeal to the Division Bench, filed by Abhijeet Bhansali, the original defendant. The half-baked recognition led to several complications as there was little reasoning provided for the identification of SMIs and their respective rights and liabilities. This article tries to delve into the parameters required to identify SMIs and what rights they possess. Further, it examines whether they can claim celebrity or publicity rights and whether they have any liabilities.

In the growing digital world, social media platforms such as Twitter, YouTube, Facebook, Instagram, LinkedIn, etc., have given almost every individual a platform to exercise his/her freedom of speech and expression. In India, these rights are guaranteed by Article 19 of the Constitution of India, which in turn brings fame to SMIs and makes them noteworthy personalities because of their unique ideas, views, creativity and achievements. But who can be called an SMI? Can every individual with a few followers on social media be termed as an SMI? Or only a famous set of individuals termed as celebrities? If every individual with a considerable number of followers is termed as an SMI, then each one of them will be granted the right of publicity and the protections guaranteed under the right to privacy shall have to be narrowed down.

 Actors, authors, artists, politicians, models, athletes, musicians, singers, television personalities, well-known business executives, and anyone who seeks to capture the public attention, including reality TV stars, are all celebrities.[ii] The understanding of celebrity has changed from the traditional categories of movie actors, rock stars and ball players^[iii]  and has extended to YouTube artists, creators, LinkedIn influencers and others. To summarise, it all depends upon the public perception, whether good or bad.

Referring to the judgment of J. Kathawala, he said, “Social media influencers are individuals who have acquired a considerable follower base on social media along with a degree of credibility in their respective space. Depending on the popularity of their field of expertise, their following can range from thousands to even millions of persons”.[iv] They are a new type of independent endorser, who possess the ability to shape the attitude and perspective of an audience through blogs, tweets, and the use of social media platforms in general.[v] Modern influencers are also defined as individuals with a significant social impact and can be hired for marketing as a digital form of word-of-mouth (‘WOM’) advertising.[vi]

Upon perusing the abovementioned descriptions, it can be concluded that there is no strict definition of an SMI. If one goes by the definition wherein, any individual holding a sense of influence and credibility with followers ranging from thousands to millions can be an influencer, there lies a presumption of equating the number of followers with the popularity of an individual. This parallel is detrimental for two reasons: firstly, quantifying followers or fan base is a difficult task and not every individual with thousand followers will be termed to have influence as it is very common to join the league of thousands and millions these days on any social media platforms; secondly, there is no criterion to assess the credibility of an individual. With such a vague definition, the identification of SMIs becomes difficult.

Will it be correct to denote social media influencers as a celebrity and can they claim celebrity rights?

Celebrities can be rightly defined as people who enjoy public recognition by a large share of a certain group of people.[vii] A celebrity is merely a person who many people talk about or know about.[viii] In D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors.,[ix] it was held that “To avail the right against the infringement of right to publicity, the plaintiff must be “identifiable” from defendant’s unauthorized use. Recognition or identifiability can be proved either through direct or circumstantial evidence.[x] On comparing the various definitions of SMIs, it can be said all the celebrity can be classified as social media influencers but not all social media influencers can be called celebrity. Hence, it would not be wrong to conclude that SMIs can claim publicity rights after qualifying conditions of validity and identifiability.[xi] This has also been held in several judgments such as Shivaji Rao Gaikwad v. Varsha Production (2015 62 PTC 351 (Madras) and Tata Sons Limited & Anr v. Aniket Singh (CS(OS) 681 of 2012).

Social Media Influencers are similar to traditional celebrities in terms of their roles and responsibilities with regard to the influence they have among common masses. These influencers are often approached to promote a brand, support a cause, etc. With great power comes great responsibility, and therefore, SMIs have the capability to change the mindset for the better and even for the worse. Although Article 19 guarantees freedom of speech and expression to every individual, it, however, comes with some restriction. In the specific case of individuals with high influence on the masses, there is a higher burden to ensure that there is a degree of truthfulness in the statements of such a personality.[xii] An SMI must be cautious and attempt to strike a balance between reviewing or endorsing a product or service and not being defamatory towards or giving any false information regarding a competing product or service. Celebrities and companies tend to fall into trouble and malign the image of any brand or product. SMIs, thus, often take the protection under section 52 of the Copyright Act, 1957 which deals with fair usage. A recent example is the Sebamed soap controversy which is, in part, similar to this case at hand in terms of product disparagement. Hence, Justice Kathawala, in the present case, rightly laid emphasis on the liability of SMIs. An SMI has the power propagate and influence the general masses and in turn, a responsibility to not recklessly pass any statement without carrying out research or an analysis that is substantiated with facts.

The Federal Trade Commission has issued guidelines to curb the development of deceptive advertisement by SMIs and protect U.S. customers which require disclosing the relationship between an SMI and an endorsing brand in a clear, simple, visible and understandable manner.[xiii] In India, there is no legislation regulating digital advertisement. However, the Advertising Standards Council of India (ASCI), an independent self-regulating body is planning to issue guidelines for regulating digital advertisement.[xiv] The Draft Central Consumer Protection Authority (Prevention of Misleading Advertisements and Necessary Due Diligence for Endorsement of Advertisements) Guidelines, 2020,[xv] which is yet to be enforced, will also help in upholding consumer rights by laying down conditions for valid advertisement.

The absence, however, of such legislation is concerning for many reasons. A set of standards must identify SMIs to uphold their rights as public figures and also to hold them liable for any consequent violations. Brands, companies and consumers have faced a lot of hardships with respect to disparagement, copyright violation, trademark violation, deceptiveness, misrepresentation, consumer complaints, etc., because of the unregulated digital world. Before we see a rise in the litigation, it is important to contemplate upon Justice Kathawala’s judgment and bring SMIs under the umbrella of a statute.

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[i]  Marico Ltd. V. Abhijeet Bhansali https://indiankaoon.org/doc/79649288/

[ii] http://docs.manupatra.in/newsline/articles/Upload/78DD5FE8-5C07-4075-934D-6917CD6BE868.pdf

[iii] Martin Luther King Jr Center for Social Change v American Heritage Products Inc

[iv] Supra 2

[v] Freberg, K., et al. Who are the social media influencers? A study of public perceptions of personality. Public Relations Review (2010), doi:10.1016/j.pubrev.2010.11.001

[vi]https://poseidon01.ssrn.com/delivery.php?ID=611103021078106112124006083121064112034072042037055057122116099022105000025123081096028012000000098030047022007078094119103097111025000087019003001010070018118068105066009032026074000127002120091013107065113005022125087108102023124015115002115122097096&EXT=pdf

[vii] http://docs.manupatra.in/newsline/articles/Upload/A8300BCD-6BF4-482E-B6E8-A3920A245A99.pdf

[viii] Titan Industries Ltd. vs M/S Ramkumar Jewellelrs (https://indiankanoon.org/doc/181125261/)

[ix] CS(OS) No. 893/2002

[x] Supra 9

[xi] Ibid.

[xii] Marico Ltd. V. Abhijeet Bhansali https://indiankanoon.org/doc/79649288/

[xiii] https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf

[xiv] https://www.businesstoday.in/current/corporate/social-media-influencer-to-be-soonon-advertising-regulators-radar-asci-advertising-standards-council-ofindia/story/383739.html

[xv]https://consumeraffairs.nic.in/sites/default/files/fileuploads/latestnews/Draft%20guidelines%20for%20stakeholders%20consultation.pdf