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June 10, 2021

Comment: Does the IP Regime in India Need to Change with the Evolution of the Virtual Influencer?

Author: Sunidhi Bansal

An influencer is someone, who has access to a large audience along with the power to affect the purchasing decisions of the consumer. Owing to their influence on the audience, influencers have the power to alter consumer opinion on a product or service and therefore purchasing decision.  The trend of social media influencers is not new, but rather has been prevalent for quite some time. There are many social media influencers with a significant number of followers, engaged in endorsement of goods and services of different brands.

Nowadays, virtual influencers are also trending on social media and gaining popularity. As the name suggests, virtual influencers are influencers with virtual identity and could be understood as an artificial computer-generated influencer driven by artificial intelligence, with the possible appearance, characteristics and personality of a human being. Just like a social media influencer, these virtual influencers also have access to large audience on social media, one such examples is the Instagram account of the famous virtual influencer Miquela with around three million followers.[1] Owing to such large audience and fandom, virtual influencers could also influence and alter the purchasing decision of a consumer, just like an any other social media influencer. Hence, it is important to regulate the claims and endorsements made by the virtual influencer as well. However, since liability cannot be imposed on the virtual influencer, the question arises should the liability be shared between the brand-owner and the companies behind such virtual influencer?

So far, the reference to virtual influencer could only be found in the recently issued Advertising Standards Council of India (ASCI) guidelines for “Influencer advertising on digital media”[2], defining virtual influencer as , “…fictional computer generated ‘people’ or avatars who have the realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers.” and also putting a liability on virtual influencers to disclose to the consumers that they are not interacting with a real human being. The new ASCI guidelines could be seen as a first step towards recognition of virtual influencers.

That said, since virtual influencers are a product of Artificial Intelligence, and cannot act independently, there is a need to put liability on the person behind these virtual influencers and need for due-diligence to be exercised by both brand owners as well as the companies behind these virtual influencers.

[1] https://www.instagram.com/lilmiquela/?hl=en

[2] https://asci.social/guidelines

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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