Balancing Act: Navigating the Legal Landscape of Social Media

    I.         Introduction


Social media has become arevolutionary[1] force in the quickly changing environment of modern communication[2], altering the way people connect, businesses[3] run, and information[4] is shared. In addition to completely altering the way we communicate, this transformation in the digital paradigm has created a complicated relationship between social media use and the law[5]. In light of this, it is crucial to investigate the legal ramifications[6] of social media, especially in India's dynamic and diversified market[7]. It is critical to comprehend the legal nuances surrounding social media and user-generated content in the ever-expanding digital ecosystem. The purpose of this analysis is to shed light on the changing legal frameworks that attempt to strike a balance between the protection of consumer interests[8],individual rights, and the integrity of information distribution and the dynamic character of social media. We uncover the layers of legislation influencing how digital interactions and advertising techniques will develop in the future as we traverse India's legal landscape for social media.


 II.         Legal Aspects of Social Media Marketing


In India, social media marketing has become a potent instrument for companies to interact with their target markets and advertise their goods and services. With the rapid growth and acceptance of social media by both the Urban and Rural sides of India, Social media marketing has gained momentum in terms of influencing the minds of the general public. Companies[9] with the help of Social Media Influencers through collaborations can promote and endorse products through the use of social media.[10]

Influencer or Social media marketing in India, falls under the realm of regulations that govern advertising[11],consumer protection[12], data privacy[13] and Intellectual property rights.


●     Information Technology (Intermediary Guidelines and Digital Media Ethics Code) - The April2023 update to India's Digital Ethics Code, formally called the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, significantly impacted the online gaming industry. By classifying online gaming platforms as "Online Gaming Intermediaries" (OGIs), the code imposes new obligations on these companies.

1)   Content Regulation: OGIs now have a responsibility to moderate user-generated content within their games. This includes monitoring for harmful content such as hate speech, violent extremism, or gambling-related promotions.[14]

2)   User Protection: The code emphasizes user protection. OGIs may need to implement mechanisms for age verification to restrict access to inappropriate content for younger users. Additionally, they might be required to provide users with tools to report abuse or problematic content within the games.[15]

3)   Transparency and Accountability: The update emphasizes transparency. OGIs may need to clearly communicate their content moderation policies and grievance redressal mechanisms to users. They might also be held accountable for failing to address problematic content effectively.[16]

●     The Code for Self-Regulation of Advertising – The Advertising Standards Council of India (ASCI) has established the Code for Self-Regulation with the aim to serve consumers’ interests in India. The code mentions a number of guidelines to help preserve the veracity of the content that is being advertised.


1)    Influencers should clearly mark promotional content, in order to ensure that the audience of the said Influencer is aware that the said content is an advertisement.

2)    Influencers are required to keep a record of all the endorsements or advertisements for a period of 6years.

3)    For any Audio content, the disclosure regarding the promotional content should be clearly stated at the beginning and the end of the said audio, and for Live streams, the disclosure should be repeated periodically during the Live stream.

4)    For any type of video content being published by an Influencer, then the disclosure should be visible on the screen (for a period of time that is deemed to be long enough for the viewer to recognize the disclosure), For any images then the disclosure should be over on the image in the manner that is easily visible.

5)    Any type of Material connection between an Influencer and a Company needs to be clearly disclosed to the audience.

6)    Influencers should provide honest and unbiased reviews and should not promote any product or services that they have not personally experienced or used.

7)    Influencers should also conduct Due diligence to verify the claims made about a product or service that they are using in promotional content.


●     Consumer Protection Act, 2019 – The Act focuses on misleading advertisements and endorsements by celebrities and social media influencers. In accordance with this if any influencer is found to not inform the audience regarding paid promotion and intentionally lying about the product can be sued for up to Rs 10 lakh and repeat offenders, the fine can be up to Rs 50 lakh. Act is in place to prevent misleading advertisements which can harm the consumer’s interests.


▪       Misleading advertisements could be:- 1) False claims regarding products and services, 2) False claims regarding the origin of the product and quality, 3) Misrepresentation in terms of Product Prices, 4) Providing of false Claims regarding the product


●     India's advertising industry has made significant progress in the areas of consumer protection and openness. A guideline titled "Endorsement Know-hows!" was released on January 20, 2023, by the Department of Consumer Affairs, which is part of the Ministry of Consumer Affairs, Food, and Public Distribution. The purpose is to guarantee compliance with the Consumer Protection Act of 2019 and related regulations, as well as to preventinfluencers and celebrities from deceiving their followers when promoting goods or services. This is due to the growing power of social media sites like Facebook, Instagram, and Twitter, which have broadened the audience for advertisers while also raising the possibility that unfair influencer marketing and deceptive consumer behaviour could result in purchases.

In their endorsements, celebrities, influencers, and virtual influencers are required by the "Endorsement Know-hows!" to prominently show disclosures regarding the "material connection" that exists between them and the advertiser. A material connection can involve any kind of payment or benefit, free goods, entries into competitions and sweepstakes, travel or lodging, media barters, recognition and prizes, or any kind of personal, professional, or familial. There might be a fifty (50) lakhs penalty for not disclosing any such material link or for violating the Consumer Protection Act of 2019. The standards also state that endorsers must have used or experienced the productor service they are endorsing and that endorsements must be conveyed in plain, uncomplicated language using phrases like "sponsored," "advertisement," or "paid promotion."

In a Nutshell it is safe to be conclusive  about:

1.    Privacy and Data Protection: With the Supreme Court of India recognizing privacy as a fundamental right, social media users are increasingly concerned about their personal data. Balancing the convenience of sharing information online with safeguarding user privacy remains a critical issue.

2.    Freedom of Expression vs. Censorship: Social media serves as a powerful platform for free expression, allowing individuals to voice their opinions, share ideas, and engage in public discourse. However, striking a balance between free speech and preventing harmful content or misinformation is a challenge.

3.    Cyberbullying and Online Harassment: Social media platforms witness a surge in cyberbullying incidents, where individuals harass, threaten, or target others using technology. Laws need to address these harmful behaviors and provide remedies for victims.

4.    Defamation and Reputation Damage: Cyber defamation occurs when false statements about an individual are intentionally published online to injure their reputation. Users must be aware of the legal consequences of defamatory content.

5.    Intellectual Property Rights (IPR):Social media platforms facilitate the sharing of user-generated content, including copyrighted material. Understanding IPR laws is crucial to avoid infringement and protect original creations.

6.    Online Advertising and Influencer Marketing: As businesses increasingly use social media for advertising, transparency and compliance with advertising regulations become essential. Influencers must disclose sponsored content to maintain transparency.

7.    User Responsibility and Platform Liability: Users should exercise caution while posting content, ensuring it adheres to legal norms. Platforms also have a responsibility to moderate content, prevent hate speech, and curb misinformation.

8.    Emerging Cybersecurity Challenges: The rapid growth of social media has led to an increase in cybercrimes, including phishing, identity theft, and fraud. Legal frameworks must adapt to address these evolving threats.


III.         User-Generated Content  and Copyright


User-generated content[17] (UGC)has emerged as a significant and powerful component of contemporary advertising. Although it presents a distinctive and genuine approach to interacting with customers, it also presents an array of copyright issues. User-generated content can be described as any form of content[18],including text, images, videos, reviews and more, created by individual users rather than traditional content creators or producers. This content is vital for creating online communities, encouraging participation, and affecting consumers' perceptions of brands. It gives people the freedom to express who they are, and what they think, and participate in a wider online conversation. Businesses are greatly impacted by user-generated content (UGC) since it is a potent marketing strategy that uses real, peer-generated content to establish credibility and trust with audiences. Businesses frequently use user-generated content (UGC) to humanize their brand, strengthen their bonds with clients, and produce more profound exchanges.

On the other hand, UGC poses difficulties in monitoring, filtering, and verifying the legitimacy and legality of the content[19].However, its real worth comes from its capacity to democratize the online environment, providing a voice to users, building communities, and changing how information is shared and used in the digital era. UGC can also be an inexpensive method of advertising for companies. Rather than launching complex, costly advertising efforts, businesses can leverage the material that their clients have already produced. Brands encourage consumers to post images, videos, and reviews on social media, and these posts are later used as adverts. This strategy is particularly common there. Additionally, UGC promotes interaction and engagement. Customers get involved and devoted when they see their work highlighted in a brand's advertising. Moreover, among people who connect with the brand, it may foster a feeling of community. However, there are drawbacks to using UGC in advertising as well. To make sure that the content fits with their brand and values, brands need to control and carefully select it. They also need to obtain consent and rights from users to use their content in advertising. Other factors to take into account are possible content misuse and privacy issues.

Copyright in User-generated content: The convergence of intellectual property rights with the creative output of individuals who submit content online makes copyright in User-Generated Content a complicated and frequently contentious topic. Understanding the ramifications of copyright in this context is essential since user-generated content (UGC)can take many different forms, including text, photos, videos, music, and more.

●     Ownership: The content's copyright is automatically held by the person who created it. According to UGC, individuals who produce and share content—like movies or pictures—are the legitimate owners of the copyright to their creations.

●     Licensing: Users have the option to give their UGC particular licenses or permissions. For example, they may grant permission to third parties to use their content in accordance with the conditions of a Creative Commons licence. When users post content, they agree to the terms and conditions of some UGC services.

●     Fair Use: According to the theory of "fair or sensible use," it is permissible to use copyrighted content under specific circumstances without asking the owner's consent or paying them. If UGC is used for criticism, commentary, news reporting, or educational purposes, it may be considered fair use in some situations. The applicability of fair use, however, varies based on the particular circumstances, as it is a complicated legal term.

●     Policies: The UGC platforms typically have their own copyright reporting procedures and policies in place for reporting infringement. In order to identify and handle copyright infringements, they might put automatic content recognition systems into place.

●     Consent: When users upload user-generated content (UGC) to platforms, they often agree to terms and conditions that specify how the platform and other users may utilize their work. Users should read and comprehend these agreements, which can vary greatly.

●     Reframing: According to legal theory, "transformative use" refers to the use of copyrighted content that has been so drastically changed or repurposed that it is considered a new work. In UGC circumstances, this may occasionally offer a legal defence against copyright claims.

●     Public domain: Some UGC artists purposefully put their creations in the public domain, which permits unrestricted use by anybody. Others may establish the terms of use through open licences such as Creative Commons.


IV.         Conclusion

In conclusion, social media marketing in India is subject to various legal aspects, including regulations on advertising, consumer protection, data privacy, and intellectual property rights. The Advertising Standards Council of India (ASCI) has established a self-regulation code that requires influencers to clearly mark promotional content and keep records of endorsements. The Consumer Protection Act of 2019focuses on misleading advertisements and endorsements, imposing fines for non-disclosure and intentional deception. The Department of Consumer Affair shas released guidelines to ensure compliance with the Consumer Protection Act and prevent deceptive influencer marketing. User-generated content (UGC) plays a significant role in modern advertising but also presents copyright challenges. UGC allows for genuine interaction with customers and can enhance brand credibility, but businesses must address issues of monitoring and verifying content legitimacy. Overall, social media and the law intersect in India, with regulations aiming to protect consumers and ensure transparency in marketing practices.

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Aniruddha Roy