INTRODUCTION
The emergence of social media influencers has been responsible for the transformation of traditional advertising and public relations. Those who solicit certain products or ideas are called influencers who target the audience through their platforms. This industry has emerged rapidly and worries about accountability and transparency. As well as free speech tensions can exist.
There is a general respect for the freedom of expression in all three states, however, the activities of the influencers are treated more or less as commercial speech that is traditionally more regulated than that of political or personal expression. They have different legal systems, principles, case law, and regulations dealing with the same. This article explores the realm of free speech and accountability concerning the Broadcasting Services (Regulation) Bill, 2024 which has been introduced in the parliament but yet to be enacted.
INDIA-
The Indian Constitution establishes the right to free speech in Article 19 (1) (a), however, this is not absolute and can be limited as per Article 19 (2). These restrictions include but are not limited to issues of sovereignty, decency, or public order, thus allowing the state an avenue through which it can regulate speech whenever it deems necessary..
In India, the origin of the regulation of social media influencers comes from the ambit of the Consumer Protection Act, 2 of 019 aimed at preventing consumers from unfair trade practices. This was elaborated further by the Consumer Protection Rules, 2020, which directly oblige influencers who promote particular brands to disclose any material connection with the brands.
In 2021, the Advertising Standards Council of India (ASCI) directed a set of guidelines. Towards the influencers operated through the digital media with emphasis on influencer marketing. In more specific terms, influencers are expected to use disclaimers such as “#ad” or “#sponsored” each time they engage in any paid partnerships..
The landscape of free speech on social media has also been affected by the Indian judiciary. The Supreme Court in the Shreya Singhal v. Union of India The case ruled against section 66A of the Information Technology. That criminalized the posting of “offensive” content on the internet The Court determined that the clause was overly vague, citing a chilling effect on the free speech of users and creating a legal precedent that prohibits government interference with content on the web. Nevertheless, influencers are still bound by a ban on false ads stipulated by the laws of consumer protection that are of social interest.
A further important change is the Information Technology Rules, 2021 These rules put in place mechanisms for making demands on social media as to the removal of certain types of content and providing for them. Opponents argue that such rules may infringe on individual rights to free speech by expanding the control of the government on digital platforms.
India’s social media superstars are going to face a wave of the 2024 Broadcasting Bill. Certainly, the govt is all for digital stars having to be clearer, especially if they’re pushing something whether it’s paid or free. But, that’s a bit scary — it suggests all their things need to be government-stamped. It sort of seems like a farewell to free speech. Is this a back door way for the government to go after people they don’t like?
UK
Article 10 of the ECHR, which was introduced to the UK legal system through the Human Rights Act, of 1998, protects the right to freedom of expression within the UK. Similar to India, slander or speech aimed at misleading the public is restricted in the UK.
The primary law that regulates the activities of an influencer in the UK is the Consumer Protection from Unfair Trading Regulations, of 2008, which has the intent to restrict influencers from representing other businesses or brands to the wrong audience. Additionally, influencers are required to properly state when and if they have been paid to promote any content, failure to abide by this law may lead to being prosecuted under consumer protection law. These statutes are applied, supervised, and regulated by the Advertising Standard Authority which is a voluntary authority..
One of the most noticeable and illustrative examples of enforcement from ASA is the case of a participant in reality television Molly-Mae Hague in the case of ASA v. Molly-Mae Hague.. This violation was explained through an oversight of Ms Hague discounting certain posts made for her social media account as sponsored content. ASA considered the fact that such practice distorts the marketing and gives a misguiding impression to consumers and therefore, directed the plaintiff to include clear indications about paid advertisement posts, for example, ‘#ads’.
The Competition and Markets Authority is also responsible for monitoring influencer activity in this regard, ensuring some form of accountability online. The CMA has targeted several influencers in its campaign against paid partnership ads, in particular concerning the 2019 Fyre Festival controversy where the likes of Kendall Jenner were criticized for failure to mention that their posts were promotional..
In countries like India, such broader regulation of content may infringe on free expression, but the same has not happened in the UK because the focus has primarily been on the need for commercial speech to be true and clear. This has prevented challenges related to the excessive intrusion of government in private self-expression issues.
USA –
In the United States, the First Amendment guarantees citizens free speech and verbal expression with minimum government involvement, even if the speech is provocative. Still, it is argued that commercial speech including influencer marketing is more strictly regulated. The Federal Trade Commission is principally charged with overseeing influencer compliance with regulations through its Endorsement Guides.
According to the FTC’s Endorsement Guidelines For social media influencers, the people who are promoting certain brands must inform the followers if they have received any support payment. For instance, in FTC v. Teami, the company and several influencers were sanctioned by the FTC for their embossed health products it had paid such people for endorsing it without revealing any favours. Such influencer marketers on Instagram had millions of followers but the promoters had not made factual disclosures that their postings were advertisement sources and not actual endorsements. Another notable case that illustrates the repercussions of lack of disclosure by influencers is Lord & Taylor.. This chain store permitted fashion bloggers to advertise its collection but did not specify that it was paid advertising. The company faced sanctions from the FTC due to false advertisement while recommending the implementation of better procedures.
At the same time, the USA’s Section 230 of the CDA, makes regulation of social media platforms more difficult. Section 230 absolves platforms from liability for content generated by third-party users, in this case, influencers. This privilege has enabled social media platforms such as Instagram and YouTube to escape liability for the misleading materials posted by the influencers which create a huge gap between the regulation of the platforms and the influencers themselves. This privilege has spurred discussions on the need to reform Section 230 to ensure more responsibility by the platforms, considering the increased concerns of misinformation and harmful content on the internet.
SUGGESTIONS
To be more transparent detailed regulation of influencers about what freedom exists in the respective country so that such influencers do not violate the right to free opinion. Such regulation may be directed at the requirements for transparency of paid content, influencers should indicate which are paid partners, so the audience can be sure about their validity. Regulation will also nudge responsible content creation by clearly outlining what is dangerous or misleading without violating the right to free speech. Through cooperation with digital companies to create such moderation tools that will curb misinformation but preserve free speech, then it’s on its way to the bookshelf. Responsibility in terms of digitally interacting can be instilled through programs that introduce digital literacy for the influencers and general public so that such an online environment can be built. Additionally, an independent body can be established to monitor compliance and pass on penalties for breach of laws, therefore making influencers accountable for their actions without curbing their creative freedom.
CONCLUSION
Changes are brewing in how we deal with chatty social media big-shots. How they say things and answer for what they say are in question. Some places like India, the UK, and the USA are using their laws to address this. In India, there’s a suggested law on broadcasting services for 2024. It has fresh ideas on how to handle what influencers do, in a way that’s more thorough than before. This law could big-time shake up the relationship. Between what? Between the freedom of speech, having to answer for what you say, and being watched over by the government in the sector of influencers. This change weaves an extra layer into an already hard-to-figure-out system of rules.
Author(s) Name: Narendra Kumar (National Law Institute University)
