SOCIAL MEDIA INFLUENCE : SOARING MARKETS AND PLUMMETING CREDIBILITY
In the modern era, the endorsements scored by a celebrity closely depend on their social media metrics. In the era of reverence for the “most-liked”, questions arise with respect to the ethics and the legality of buying fake Instagram followers or Youtube views. This article revolves around the effect and legality of fake social media metrics and the methods to be used to curb them.
THE INFLUENCER ECONOMY
In the month of August, 2020, the popular Indian rap artist ‘Badshah’ was questioned by the Mumbai Police in connection with a probe into a racket[i] which creates and sells fake social media followers and ‘likes’, where the artist admitted to entering into a deal in order to increase the number of impressions on his latest work. It is not the first time that such an incident has come to prominence. According to a 2019 report by the Institute of Contemporary Music Performance (ICMP), several popular global celebrities like Priyanka Chopra or Deepika Padukone allegedly buy fake followers.[ii]
The onset of Social Media has impacted our economy in several ways, one of which is the conception of the “Influencer Economy”. Content creators have amassed a large and loyal audience who follow a specific niche and engage with it regularly, whether that niche is a hobby or a political opinion. These creators can then “influence” their followers by advertising a specific product or service which resonates with their interest. This influence is measured by indicators such as the number of followers, likes, retweets etc., and is getting increasingly effective.[iii]
A by-product of this form of economy is the emergence of platforms that essentially supply these indicators of social media influence to their consumers. By paying these platforms, any creator can indicate a higher number of followers, likes and retweets which can lead to them getting deals with brands that seek to capitalize on such engagement.
These indicators are sold mainly in two ways – by the use of ‘bots’ assigned for a specific purpose, and by fake accounts which use the identities of other people. It was a complaint against one such fake account that brought the attention of Mumbai Police towards this racket.[iv]
THE PRECEDENT-SETTING SETTLEMENT
One such supplier of fake indicators of social media influence was Devumi Inc., a now-defunct American Company, which openly sold followers and retweets despite the prohibition of the same by social media companies. These indicators were bought by several social media influencers like actors, athletes, musicians, writers and also professionals that benefited from boosted credibility in their potential clients’ perspective, like law firm partners and investment professionals.
Devumi’s actions attracted a complaint from the United States Federal Trade Commission (USFTC) which subsequently halted its deceptive online marketing tactics.[v] This complaint was the first of its kind which challenged the sale of “fake indicators of social media influence which are important metrics that businesses and individuals use in making hiring, investing, purchasing, licensing, and viewing decisions.”
Finding Devumi Inc. in violation of Section 5(a) of the Federal Trade Commission Act which prohibits “unfair or deceptive acts or practices in or affecting commerce”, the District Court of Florida by way of an order banned Devumi from selling or assisting others in selling social media influence to users of such platforms and also prohibited them from making any misrepresentation or assisting others in doing so, about the social media influence of any person.[vi]
THE POTENTIAL LEGAL RECOURSE FOR INDIA
The survival of certain celebrities in cyberspace is mostly dependent on the number of followers they are able to cater to. In the era of reverence for the “most-liked”, questions arise with respect to the ethics and the legality of buying fake Instagram followers or Youtube views. Far from being banned, such niched fraudulent practices have been flourishing across India.
There is no legislation in the country involving the legality of buying and selling of fake accounts. Neither is there an express definition of “dishonest practices” in this context nor are there any protective or deterrent penalising measures present in the legal scenario.
In order to address the policy vacuum, Section 468[vii] of the Indian Penal Code can be invoked which deals with committing forgery of a document or electronic record for the purposes of cheating. Since fake accounts come under the purview of electronic records, any creator using such accounts to misrepresent their popularity and build a partnership with brands on its basis can be said to commit misrepresentation amounting to fraud.
Certain enterprises thrive on their social media presence and use it as a platform to establish their reach and popularity. Projecting fake social media metrics amounts to misrepresentation which qualifies as an unfair trade practice under Section 2(47)[viii] of the Consumer Protection Act, 2019. A redressal against such a practice can be sought under Section 17[ix] of the Act, following which the Central Consumer Protection Authority (CCPA) may investigate and curb such practice.[x]
By interpreting the practice of selling and buying fake indicators of social media influence as an unfair and deceptive trade practice, as has been done by the US Federal Trade Commission, the companies contracting with celebrities who have fake followers can be saved from fraud, and the racket can be put to a halt.
With the advent of technology, bots need to be identified not just because of the commercial chaos that they create, but also the political and social unrest they are adept at creating. Russia’s exemplary use of Internet Research Agency (IRA) accounts reflects the adversities of an unregulated technoscape. An Indian example would be the state propaganda, both private and state-sponsored which attacked Jeremy Corbyn after he criticized Indian handling of Kashmir. This shows that the problem of fake social media metrics is not only limited to commercial practices but also affects the masses at large. Thus, laws need to be developed to protect both – the brands who sign with fraudulent influencers and also the people who trust them.
The US Federal Trade Commission with the duty to protect and educate the consumers had issued such litigation as it had a “reason to believe” that the unfair social media metrics stood in clear violation of the law and hence initiated the proceeding in the public interest. Hence, the Competition Commission of India, which epitomises fair trade should formulate pertinent supervisory regulations so as to curb the commercial plague created by such misrepresentation.
The recent Personal Data Protection Bill makes it mandatory for all social media intermediaries (which have users above a notified threshold and whose actions are capable of impacting an electoral democracy or public order) to provide a ‘Voluntary User Verification’ mechanism for users in India.[xi] Such verification can curb the spread of fake followers and consequently fake news.
We are currently witnessing a paradigm shift in the economy, as information is democratised through social media. In the presence of such a powerful and pervasive medium, citizens ought to be protected from any potential deceptions on part of the “influencers” who have gained a hold over this platform and profit from it.
[i] PTI, Badshah questioned by police in fake followers racket, THE INDIAN EXPRESS (Aug. 9, 2020, 12:37 PM), https://indianexpress.com/article/entertainment/music/rapper-badshah-questioned-by-police-in-fake-followers-racket-6545453/. [ii] Anshika Awasthi, Deepika Padukone To Priyanka Chopra And Kardashians; Celebrities With Most Fake Followers On Instagram, BUSINESS TODAY (Aug. 14, 2020, 12:59 AM), https://www.businesstoday.in/latest/trends/deepika-padukone-to-priyanka-chopra-and-kardashians-celebrities-with-most-fake-followers-on-instagram/story/412899.html. [iii] Audrey Schomer, Influencer Marketing: State of the Social Media Influencer Market in 2020, BUSINESS INSIDER (Dec 18, 2019, 12:37 AM), https://www.businessinsider.com/influencer-marketing-report?IR=T. [iv] Samarth Goyal, Bhoomi Trivedi ‘shocked‘ how her complaint exposed artists buying fake likes, HINDUSTAN TIMES (Aug 11, 2020, 12:33 PM), https://www.hindustantimes.com/music/bhoomi-trivedi-shocked-how-her-complaint-exposed-artistes-buying-fake-likes/story-aBLEOXR03REe5Odog2ufEO.html. [v] Federal Trade Commission v. Devumi, LLC, Case No. 9:19cv81419. [vi] Id. [vii] The Indian Penal Code 1860, § 468. [viii] Consumer Protection Act, 1986, § 2(47). [ix] Id, § 17. [x] Id, § 18. [xi] The Personal Data Protection Bill, 2019, §§ 28 (3) and 28(4).