THE LAWWAY WITH LAWYERS JOURNAL
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VOLUME:-35 ISSUE NO:- 35 , MAY 20, 2026
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Authored By :- Doc.Neha Purohit
Co Authored By:- Kriti Singh
CRIMINAL LIABILITY OF INFLUENCERS FOR MISLEADING CONTENT
Abstract
The exponential proliferation of social media platforms has catalysed the emergence of a powerful new class of commercial actors — digital content creators commonly designated as ‘influencers’. These individuals command audiences ranging from thousands to hundreds of millions of followers and exercise remarkable sway over consumer behaviour, investment decisions, lifestyle choices, and public opinion. Their commercial activities have, however, generated a parallel and gravely under-examined problem: the systemic dissemination of misleading, deceptive, or fraudulent content for monetary gain. While civil liability frameworks, most notably consumer protection legislation and advertising standards codes, have been incrementally extended to capture such conduct, the application of criminal liability to influencers who propagate misleading content remains analytically contested and legislatively underdeveloped in India.
This paper examines the criminal liability of social media influencers for misleading content through a rigorous analysis of the existing Indian statutory framework, including the Indian Penal Code, 1860, the Information Technology Act, 2000, the Consumer Protection Act, 2019, the Securities and Exchange Board of India regulations, and the Food Safety and Standards Act, 2006. It critically evaluates the adequacy of the mens rea requirements, the evidentiary challenges unique to digital media, the doctrinal incongruities that arise when classical criminal law concepts are transposed onto algorithmically mediated commercial speech, and the constitutional limits imposed by Article 19 of the Constitution of India. Drawing upon comparative jurisprudence from the United States, the European Union, and the United Kingdom, the paper identifies significant lacunae in the current Indian regulatory architecture and proposes a sector-calibrated, intent-sensitive framework for criminal accountability. The paper concludes by recommending targeted legislative amendments, the creation of a specialised regulatory enforcement body, and the adoption of mandatory disclosure standards to deter the weaponisation of influencer platforms for consumer deception.
Keywords: Influencer liability, misleading content, consumer protection, digital fraud, mens rea, IPC, IT Act, ASCI, SEBI.
Introduction
The twenty-first century has witnessed an irreversible transformation of the commercial and informational landscape through the medium of social media. Platforms such as Instagram, YouTube, X (formerly Twitter), Snapchat, and more recently, the short-form video service Moj and Reels-driven Instagram feeds, have birthed an entirely novel professional category: the social media influencer. Defined functionally as individuals who leverage their online following to shape the purchasing decisions, beliefs, or conduct of their audience in exchange for monetary or non-monetary consideration, influencers today constitute a multi-billion dollar global industry, with the Indian influencer market estimated to be worth over ₹2,000 crore and growing at approximately thirty percent annually.
This commercial dynamism is not, however, unaccompanied by serious social risks. Influencers have been implicated in the promotion of sham investment schemes, counterfeit luxury products, nutritionally fraudulent health supplements, unregistered pharmaceutical drugs, misleadingly edited real estate developments, and outright fictitious financial instruments. The victims of such deceptions are disproportionately drawn from younger, less financially literate, and more digitally immersed segments of the population — precisely those demographics most susceptible to the parasocial trust that influencers cultivate with their audiences. The Advertising Standards Council of India (ASCI) reported a threefold increase in violations by influencers between 2021 and 2023, underscoring the urgency of legal intervention.
The legal response to this challenge in India has thus far been predominantly civil and regulatory in character. The Consumer Protection Act, 2019 introduced provisions specifically addressing misleading advertisements, and the ASCI, the Securities and Exchange Board of India (SEBI), and the Central Consumer Protection Authority (CCPA) have each promulgated sector-specific codes and guidelines governing influencer disclosures. However, the application of substantive criminal law — with its attendant sanctions of imprisonment, criminal fines, and reputational stigmatisation — to influencer misconduct remains analytically underdeveloped. Courts have yet to pronounce authoritatively on the precise contours of influencer criminal liability, and academic scholarship in India has been sparse.
This research paper proceeds in six parts. Following this introduction, Part II identifies the research objectives and questions that animate the study. Part III undertakes a systematic literature review situating the analysis within the existing body of scholarship. Part IV examines the thematic dimensions of the problem across five discrete heads: the definitional and conceptual framework; the applicable criminal law provisions; the mens rea problem; sector-specific liability regimes; and comparative perspectives. Part V draws conclusions from the analysis, and Part VI sets out the bibliography.
Research Objectives
The present study is animated by the following three research objectives:
1. To map and critically evaluate the existing statutory and regulatory framework in India governing criminal liability for misleading content disseminated by social media influencers, including the provisions of the Indian Penal Code, 1860, the Information Technology Act, 2000, the Consumer Protection Act, 2019, the SEBI regulations, and the Food Safety and Standards Act, 2006, in order to assess the coherence, scope, and practical enforceability of the current legal regime.
2. To analyse the doctrinal tensions arising from the application of classical criminal law concepts — particularly the requirements of mens rea, actus reus, and criminal conspiracy — to the algorithmically mediated, commercially incentivised, and often semi-automated speech environment of digital influencer platforms, with a view to determining when and how influencer conduct may attract criminal rather than merely civil liability.
3. To develop, through comparative analysis of regulatory approaches in the United States, the European Union, and the United Kingdom, a set of normative recommendations for legislative reform and institutional design that would create a coherent, proportionate, and rights-respecting criminal accountability framework for influencers in India, capable of deterring fraud without unduly suppressing legitimate commercial expression.
Research Questions
The paper is structured around three central research questions:
1. Under what circumstances does the dissemination of misleading content by a social media influencer in India satisfy the constituent elements of criminal offences under the Indian Penal Code, 1860 (particularly sections 415–420 relating to cheating and fraud), the Information Technology Act, 2000, and sector-specific legislation, and what evidentiary and doctrinal obstacles impede successful prosecution?
2. How should the concept of mens rea — specifically dishonest or fraudulent intent — be interpreted and proved in the context of commercially sponsored digital content creation, where the influencer may operate under significant informational asymmetry or brand-imposed restrictions, and to what extent can constructive or reckless knowledge serve as a valid surrogate for specific intent in influencer fraud cases?
3. What legislative and institutional reforms are necessary to construct an effective, constitutionally consonant, and internationally harmonised criminal accountability regime for influencers in India, and how should such a regime demarcate the boundary between criminal liability, civil liability, and regulatory sanction?
Literature Review
The literature on influencer liability is nascent but rapidly expanding. The existing scholarship may be organised thematically around five clusters: regulatory frameworks, criminal law doctrine, sector-specific liability, comparative perspectives, and normative proposals for reform.
4.1 Regulatory and Civil Liability Frameworks
Bhattacharya (2022) provides one of the earliest systematic Indian analyses of influencer regulation, tracing the evolution of ASCI guidelines and Consumer Protection Act provisions and concluding that the present regulatory architecture is structurally incapable of deterring sophisticated deception given its reliance on self-reporting and low-value civil penalties. Bhattacharya identifies the absence of a criminal enforcement pathway as the most significant lacuna in the framework.
Mishra (2023) examines the ASCI’s Influencer Guidelines of 2021 and the CCPA Guidelines of 2022 through the lens of effective disclosure regulation. Her study draws on compliance data to demonstrate that mandatory labelling requirements (‘AD’, ‘Paid Partnership’) have achieved only partial compliance, with a majority of influencer posts remaining undisclosed as of 2023. She advocates for graduated sanctions culminating in criminal prosecution for repeat violators.
Iyer (2022) analyses the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and argues that their primary utility in the influencer liability context lies in imposing takedown obligations on platforms that host misleading sponsored content, thereby creating a secondary accountability pathway that complements direct influencer liability. He notes the limitations of the safe-harbour protections for platforms in cases of manifestly deceptive influencer content.
4.2 Criminal Law Doctrine and Digital Fraud
Sharma and Mehta (2023) offer the most comprehensive analysis to date of the application of IPC cheating provisions to influencer fraud, working through the constituent elements of section 420 and section 66D of the IT Act systematically. They conclude that while the actus reus of influencer fraud readily maps onto the delivery or retention of property induced by deceptive communication, the mens rea requirement presents insuperable evidential difficulties in many cases, particularly where the influencer relies on brand-supplied claims.
Patel (2022) interrogates the concept of dishonest intent as employed in the IPC in the context of technology-mediated deception. He argues that courts should adopt a ‘constructive knowledge’ standard analogous to that employed in corporate criminal liability, under which an influencer who takes reasonable steps to verify the accuracy of sponsored claims is distinguished from one who proceeds recklessly or wilfully blind to obvious falsehood.
Agarwal (2021) surveys the role of mens rea in digital fraud prosecutions more broadly, drawing parallels between the treatment of email fraud, investment fraud, and influencer fraud under Indian criminal law. Her empirical analysis of reported judgments reveals that courts have consistently required proof of specific intent in fraud cases involving digital communications, making conviction for influencer fraud significantly more demanding than the corresponding civil standard of deceptive conduct.
4.3 Sector-Specific Liability Studies
Tiwari (2023) examines the specific problem of ‘finfluencers’ — financial influencers who disseminate stock tips, investment recommendations, and commentary on securities without SEBI registration — and the application of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations to their conduct. He documents several SEBI enforcement actions taken in 2022–2023 against unregistered investment advisors operating through social media and recommends that unregistered finfluencer activity causing market harm be explicitly criminalised.
Verma (2023) analyses the liability of health influencers who promote dietary supplements and miracle cures without adequate clinical substantiation under the Food Safety and Standards Act, 2006, and the Drugs and Cosmetics Act, 1940. She identifies a regulatory vacuum in which such influencers escape prosecution because enforcement agencies focus on manufacturers rather than promoters, and recommends amending the FSSA to expressly impose criminal liability on influencers who promote unproven health claims for consideration.
4.4 Comparative Perspectives
Gupta (2022) undertakes a comparative study of intermediary liability for misleading user-generated content across India, the United States, and the European Union. Her analysis demonstrates that the Indian framework, while broadly analogous to the pre-DSA European model, lacks the robust co-regulatory mechanisms and meaningful enforcement penalties that have made the EU regime relatively effective. She recommends India adopt elements of the Digital Services Act’s transparency and advertising disclosure infrastructure.
Narayanan et al. (2021) provide an empirical analysis of social media manipulation across platforms, documenting the mechanisms by which algorithmically amplified influencer content exploits cognitive biases to induce consumer decisions. While not primarily a legal text, their findings have significant normative implications for the design of criminal culpability standards, particularly the question of whether liability should attach to the influencer’s intent alone or also to the foreseeable harmful effects of algorithmically amplified deceptive speech.
4.5 Normative Proposals and Platform Governance
Prasad (2023) proposes a ‘unified digital influencer liability framework’ for India, comprising a tiered system of obligations calibrated to follower count, commercial activity, and sectoral risk. Her framework provides for regulatory warnings at the first tier, civil penalties at the second tier, and criminal prosecution at the third tier for the most serious and recidivist deceptions. The proposal represents the most sophisticated normative intervention in the Indian literature and is engaged with extensively in Parts IV and V of this paper.
Rao (2021) examines the doctrine of criminal conspiracy under section 120B of the IPC in the context of brand-influencer collusion and argues that where a brand and influencer jointly devise a scheme to disseminate a materially false representation to induce consumer purchases, both may be criminally liable as co-conspirators regardless of whether either would be independently liable. This approach significantly extends the reach of criminal law into the influencer ecosystem.
Ramakrishnan (2023), Chakraborty (2023), Banerjee (2023), Singh (2021), Reddy (2022), Joshi (2022), and Khanna (2022) collectively enrich the literature with analyses of platform governance obligations, the tension between self-regulation and state intervention, data privacy dimensions of targeted misleading advertising, and the constitutional boundaries of criminalising commercial speech.
V. Thematic Analysis
5.1 Conceptual Framework: Who Is an Influencer and What Constitutes Misleading Content?
Indian law does not yet provide a statutory definition of ‘influencer’. The ASCI Guidelines of 2021 define an influencer as any individual who has access to an audience and the power to affect the purchasing decisions or opinions of that audience owing to their authority, knowledge, position, or relationship with the audience. The CCPA Guidelines of 2022 broadly adopt this formulation. For the purposes of criminal liability analysis, however, a more precise definition is required, one that links the status of influencer to the commercial nature of the communication. This paper adopts a working definition of an influencer as a natural or legal person who publishes content on a digital platform for consideration — whether monetary, in-kind, or through other benefits — that is intended to influence the beliefs, decisions, or conduct of that platform’s audience.
Equally critical is the definition of ‘misleading content’. The Consumer Protection Act, 2019 defines a ‘misleading advertisement’ as one which falsely describes a product or service, gives a false guarantee, makes an express or implied false representation, or deliberately conceals important information likely to induce a transactional decision. This definition, while adequate for civil purposes, is insufficient to demarcate criminal liability, which requires not merely the objective falsehood of content but the subjective dishonest or fraudulent intent of the communicator. The criminal law line between misleading content that warrants a civil remedy and content that attracts criminal sanction runs, therefore, through the territory of intent — a territory that is notoriously difficult to map in digital communications where content is co-created by brands, agencies, influencers, and platform algorithms.
5.2 The Criminal Law Framework: Applicable Provisions and Their Analysis
The criminal liability of influencers for misleading content may arise under multiple statutory provisions operating in parallel or in convergence.
The Indian Penal Code, 1860 provides the principal criminal law framework. Section 415 defines cheating broadly as dishonestly or fraudulently deceiving any person into delivering property or consenting to retain property, or intentionally inducing the person to do or omit to do anything which causes or is likely to cause damage or harm. Section 420 — the most commonly invoked cheating provision — provides for imprisonment of up to seven years and fine for cheating and dishonestly inducing delivery of property. In the influencer context, where an influencer falsely claims to have personally used or benefited from a product, induces followers to purchase it on the faith of that representation, and receives undisclosed payment for the promotion, all elements of section 420 would appear to be facially satisfied: there is a deceptive representation, an inducement to deliver property (the purchase price), and a dishonest intent evidenced by the undisclosed commercial arrangement. However, courts applying the Privy Council’s analysis in R v. De Berenger and adopted by the Supreme Court in numerous decisions have required the prosecution to establish dishonest intent beyond reasonable doubt through positive evidence, not merely inference from the false result.
Section 66D of the Information Technology Act, 2000 creates an offence of cheating by personation using a computer resource, punishable with imprisonment of up to three years and fine. This provision has been invoked in cases where influencers have impersonated celebrities or created false institutional affiliations to lend fraudulent credibility to promotions. Its applicability is, however, limited to cases involving personation and does not extend to the broader category of non-personation misleading content that forms the majority of influencer deception cases.
Section 89 of the Consumer Protection Act, 2019 provides that a manufacturer or service provider who causes a misleading advertisement shall be punishable with imprisonment extending to two years and a fine extending to ten lakh rupees for the first contravention, with enhanced penalties for subsequent contraventions. The 2019 Act also empowers the CCPA to impose penalties on ‘endorsers’ of misleading advertisements, which encompasses influencers. Crucially, the endorser is entitled to a defence if they have exercised due diligence to verify the veracity of the claims made in the endorsement — a defence that directly engages with the mens rea question.
Section 120B of the IPC, which creates criminal liability for conspiracy, is of considerable significance in the influencer liability context. Where evidence establishes an agreement between a brand, its advertising agency, and the influencer to disseminate content that all parties knew or ought to have known to be materially false, all three may be criminally liable as co-conspirators irrespective of which party created the false claim. This provision is particularly powerful in cases of systematic fraud campaigns involving multiple influencers and multiple brands.
5.3 The Mens Rea Problem: Dishonest Intent in the Age of Sponsored Content
The most formidable doctrinal obstacle to the criminal prosecution of influencers for misleading content is the mens rea requirement. The offences most directly applicable to influencer fraud — sections 415 to 420 of the IPC — require proof of ‘dishonest’ or ‘fraudulent’ intent, defined respectively in sections 24 and 25 of the IPC as intent to cause wrongful gain or loss and intent to deceive.
Influencer misconduct presents a spectrum of culpability. At one end sits the influencer who knowingly promotes a product or investment that they have been informed — whether by their own investigation, complaints from followers, or adverse regulatory findings — is fraudulent. Such an influencer possesses specific criminal intent and ought to be amenable to prosecution under section 420 IPC. At the other end sits the influencer who promotes a product in good faith, relying on brand representations, and whose content later proves to be inaccurate. Such an influencer lacks the requisite intent and ought not to face criminal liability, though civil and regulatory consequences may remain appropriate.
Between these poles lies a vast grey zone of reckless promotion — the influencer who promotes a cryptocurrency scheme without making any reasonable inquiry into its legitimacy; the health influencer who promotes weight-loss supplements containing undisclosed pharmacologically active substances without reading ingredient labels; the financial influencer who promotes a stock after receiving undisclosed payment from promoters who are simultaneously selling their holdings. In each of these cases, the influencer cannot be said to have specific intent to deceive but has shown a degree of indifference to the truth or falsity of their representations that goes well beyond mere negligence.
This paper argues that Indian courts should, in appropriate cases, adopt a ‘wilful blindness’ or ‘recklessness’ standard for the mens rea of influencer fraud analogous to that employed in securities law and financial fraud cases. Under this standard, an influencer who consciously avoids acquiring knowledge of material facts — and who had reasonable means and incentive to acquire such knowledge — would be treated as having the equivalent of actual knowledge for the purposes of criminal intent. This approach is not without precedent in Indian criminal jurisprudence and would bring influencer fraud law into alignment with both the moral rationale of the mens rea requirement and the practical realities of digital commercial content creation.
5.4 Sector-Specific Criminal Liability Regimes
Beyond the general criminal law framework, several sector-specific statutes impose criminal liability for misleading content in areas of heightened public risk.
In the financial services sector, SEBI has taken an increasingly assertive posture towards unregistered ‘finfluencers’. The SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2003, as amended in 2022, prohibit the creation or spread of false or misleading information about securities that is likely to induce any person to deal in securities. The SEBI Act, 1992 provides for imprisonment of up to ten years for manipulation of the securities market, and SEBI has explicitly stated in its 2023 Circular that influencers who provide investment advice without registration may be liable for this offence. The potential for ‘pump-and-dump’ schemes orchestrated through influencer networks represents one of the gravest risks in the current ecosystem and has attracted significant regulatory attention internationally.
In the food and health sector, section 53 of the Food Safety and Standards Act, 2006 criminalises misleading advertisements relating to food products. The penalty is imprisonment up to six months and a fine. The Drugs and Cosmetics Act, 1940, similarly, creates offences for the promotion of misbranded, adulterated, or spurious drugs. Health and wellness influencers who promote supplements, Ayurvedic preparations, or over-the-counter drugs with unsubstantiated therapeutic claims fall within the ambit of these provisions, particularly where such claims induce consumers to forgo conventional medical treatment.
The Consumer Protection (E-Commerce) Rules, 2020 impose specific disclosure obligations on ‘sellers’ operating on e-commerce platforms, and where influencers act as resellers or affiliate promoters, they may attract liability under these Rules. Furthermore, the Digital Personal Data Protection Act, 2023 introduces data fiduciary obligations that may be relevant where influencers collect audience data through embedded links, referral codes, or interactive content for commercial purposes without adequate disclosure.
5.5 Comparative Perspectives: Lessons from the United States, European Union, and United Kingdom
A comparative perspective illuminates both the possibilities and limits of criminal liability as an instrument of influencer regulation.
In the United States, the Federal Trade Commission Act, 15 U.S.C. § 45, prohibits ‘unfair or deceptive acts or practices in or affecting commerce’. The FTC’s Guides Concerning the Use of Endorsements and Testimonials, revised in 2023, impose mandatory disclosure requirements on influencers and provide for civil penalties. While criminal prosecution of influencers is available under federal wire fraud statutes (18 U.S.C. § 1343), it has been exercised only in cases of systematic and deliberate fraud, not inadvertent non-disclosure. The FTC’s enforcement record reveals the primacy of civil regulatory action over criminal prosecution as the preferred instrument even in a sophisticated legal system.
The European Union’s Digital Services Act (DSA), which came into full effect in February 2024, represents the most sophisticated contemporary framework for regulating digital commercial speech. Article 26 of the DSA requires that advertising presented to users be clearly identified as such and that the natural or legal person on whose behalf the advertisement is presented be identifiable. Non-compliance attracts fines of up to six percent of global annual turnover. Critically, the DSA proceeds from the premise that regulatory sanctions backed by significant financial penalties, rather than criminal liability, are the appropriate instrument for addressing systemic influencer non-disclosure, while preserving criminal law for cases of deliberate large-scale fraud.
In the United Kingdom, the Competition and Markets Authority and the Advertising Standards Authority have taken several high-profile enforcement actions against influencers for non-disclosure, and the Fraud Act, 2006 has been invoked in extreme cases involving deliberate false representation for financial gain. The UK experience supports the thesis that an effective influencer regulation regime requires a graduated toolkit, with criminal prosecution reserved for the most serious cases of deliberate fraud and a robust civil and regulatory apparatus handling the broader spectrum of non-compliance.
The comparative survey suggests three design principles for an Indian framework: first, criminal liability should be reserved for cases involving specific intent to deceive or proven recklessness amounting to wilful blindness; second, the regulatory architecture should invest heavily in a civil enforcement tier with meaningful financial penalties capable of deterring opportunistic non-compliance without criminalising it; and third, platform accountability obligations should be strengthened to create ex ante incentives for compliance.
5.6 Constitutional Constraints and Freedom of Expression
Any criminal liability framework for influencer content must reckon with the constitutional guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The Supreme Court in Shreya Singhal v. Union of India affirmed that speech on digital platforms is entitled to full constitutional protection, and that restrictions thereon must satisfy the twin tests of reasonableness and nexus to one of the grounds specified in Article 19(2).
Commercial speech — including influencer endorsements — is protected under Article 19(1)(a) but is subject to greater permissible regulation than purely political or expressive speech, given its nexus to market conduct and consumer protection, both of which fall within the ‘public order’ and ‘morality’ grounds of Article 19(2). The criminalisation of deliberately deceptive commercial speech is clearly constitutionally permissible and proportionate. The critical constitutional question is whether the criminal provisions are drawn with sufficient precision to avoid overbreadth, i.e., whether they target only dishonest or fraudulent influencer conduct and not merely inaccurate, exaggerated, or poorly researched content.
This paper submits that the existing IPC provisions, properly interpreted, do not raise constitutional concerns because they require proof of the specific mental elements of dishonesty and fraud as prerequisites to liability. However, any legislative expansion of criminal liability to cover reckless or negligent influencer conduct would need to be carefully crafted to ensure that it does not chill legitimate commercial expression or impose an unreasonably onerous verification burden on micro-influencers and emerging content creators who lack the resources to commission independent product testing. A tiered approach — imposing stricter due diligence obligations on ‘mega-influencers’ (those with more than one million followers) than on ‘nano-influencers’ (those with fewer than ten thousand followers) — would be both constitutionally proportionate and practically sensible.
5.7 Evidentiary Challenges and Enforcement Gaps
Even where criminal liability is theoretically established, the practical enforcement of criminal sanctions against influencers faces formidable evidentiary challenges. First, the digital nature of influencer content means that it is frequently edited, deleted, or algorithmically suppressed before enforcement authorities can preserve it as evidence. Second, the trans-border character of influencer activity — where an Indian influencer promotes a product manufactured in China, sold through a Singapore-incorporated e-commerce company, and distributed to Indian consumers via an American platform — creates severe jurisdictional complexity. Third, the opaque financial arrangements between brands, marketing agencies, and influencers make it difficult to establish the existence of consideration and thereby prove the commercial character of the endorsement.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 impose preservation and traceability obligations on significant social media intermediaries that have partial utility for law enforcement purposes. Under Rule 3, significant social media intermediaries are required to enable the identification of the first originator of information on request by a competent authority. This provision, if effectively enforced, could assist in tracing the originators of coordinated misleading influencer campaigns.
The Law Commission of India in its Report No. 285 on the Review of the IT Act, 2000 has recommended the creation of a specialised Cyber Crime Investigation Unit with dedicated capacity for investigating digital fraud, including influencer fraud, and the amendment of the Indian Evidence Act to provide for simplified authentication of digital records in criminal proceedings. These recommendations represent important steps towards bridging the enforcement gap.
5.8 Proposals for Legislative Reform
Drawing together the foregoing analysis, this paper proposes the following legislative and institutional reforms to create a coherent, proportionate, and effective criminal accountability framework for influencers in India.
First, the Consumer Protection Act, 2019 should be amended to insert a dedicated chapter on ‘Digital Influencer Accountability’ that defines ‘digital influencer’, ‘sponsored content’, and ‘misleading influencer content’ with statutory precision, establishes a tiered system of obligations calibrated to follower count and commercial turnover, and creates a specific criminal offence of ‘influencer fraud’ punishable with imprisonment of up to five years where an influencer knowingly or recklessly disseminates materially false sponsored content that causes ascertainable harm to identifiable consumers.
Second, the Securities and Exchange Board of India Act, 1992 should be amended to expressly extend the prohibition on market manipulation and fraudulent trade practices to unregistered influencers who disseminate securities-related misinformation for consideration, with a criminal penalty of imprisonment up to ten years in cases of demonstrated market harm.
Third, India should establish a Digital Influencer Regulatory Authority (DIRA) — a multi-sectoral body drawn from the CCPA, SEBI, the Ministry of Information and Broadcasting, and the ASCI — with authority to investigate, adjudicate, and refer for criminal prosecution the most serious cases of influencer misconduct. The DIRA would maintain a registry of high-follower influencers, administer a mandatory disclosure architecture, and publish periodic compliance reports.
Fourth, platform liability should be enhanced through targeted amendments to the IT Rules, 2021 imposing specific obligations on significant social media intermediaries to implement algorithmic detection of undisclosed sponsored content, to require disclosure labels as a condition of monetisation, and to disable monetisation for accounts repeatedly found to be in violation of disclosure requirements.
Conclusion
The criminal liability of influencers for misleading content is not a theoretical curiosity but a pressing legal and social problem with concrete victims and systemic harms. The analysis in this paper demonstrates that the existing Indian statutory framework — while containing the doctrinal building blocks of criminal liability in the IPC cheating provisions, the IT Act, and sector-specific legislation — does not yet constitute a coherent, adequately enforced, or sufficiently deterrent regime for influencer fraud.
The central doctrinal challenge is the mens rea requirement. This paper has argued that courts should adopt a ‘wilful blindness’ standard for the specific intent elements of IPC sections 415–420 in cases where an influencer consciously avoids verifying the accuracy of materially important representations in sponsored content. This standard preserves the distinction between criminal and civil liability, avoids the constitutional pitfall of criminalising negligent or good-faith commercial speech, and yet reaches the reckless influencer who trades on their parasocial credibility to profit from demonstrably fraudulent schemes.
The sector-specific analysis reveals that financial influencers, health influencers, and real estate influencers present the most acute risk profiles, and that SEBI, FSSAI, and the CCPA must be empowered and resourced to pursue not merely civil penalties but criminal referrals in the most serious cases. The comparative analysis of US, EU, and UK frameworks confirms that an effective regime requires a graduated toolkit, with criminal prosecution reserved for the apex of a pyramid of graduated responses that includes platform-level enforcement, regulatory sanctions, civil liability, and professional disqualification.
The constitutional framework does not impede the creation of a well-calibrated criminal liability regime for influencers. Article 19(1)(a) protects commercial speech but does not immunise deliberately deceptive commercial speech from criminal sanction; Article 19(2) permits reasonable restrictions on speech in the interests of public order and consumer protection. Legislative precision in drafting the criminal offence — ensuring that only dishonest or wilfully reckless conduct attracts penal liability — is the key to constitutional compatibility.
The time has come for India to take the legislative step from a fragmented, civil and regulatory-dominated response to influencer fraud to a principled, statutorily anchored, criminally backed framework that reflects the severity of the harms caused by large-scale influencer deception. The recommendations proposed in this paper — a dedicated chapter in the Consumer Protection Act, amendments to the SEBI Act, the creation of a Digital Influencer Regulatory Authority, and the enhancement of platform accountability obligations — together constitute a programme of reform proportionate to the scale of the challenge and capable of restoring consumer trust in the digital marketplace without unduly chilling the vibrant culture of digital content creation that has come to define contemporary Indian public life.
Vii. Bibliography
A. Primary Sources — Statutes and Regulations
1. Consumer Protection Act, 2019 (Act 35 of 2019).
2. Consumer Protection (E-Commerce) Rules, 2020 (S.O. 2357(E)).
3. Digital Personal Data Protection Act, 2023 (Act 22 of 2023).
4. Drugs and Cosmetics Act, 1940 (Act 23 of 1940).
5. Food Safety and Standards Act, 2006 (Act 34 of 2006).
6. Indian Penal Code, 1860 (Act 45 of 1860).
7. Information Technology Act, 2000 (Act 21 of 2000).
8. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (G.S.R. 139(E)).
9. Securities and Exchange Board of India Act, 1992 (Act 15 of 1992).
10. SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (as amended 2022).
11. Central Consumer Protection Authority, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.
12. ASCI, Guidelines for Influencer Advertising in Digital Media, 2021.
13. SEBI Circular on Social Media Influencers in Securities Market, SEBI/HO/OIAE/OIAE_IAD-1/P/CIR/2023/101.
14. European Union, Regulation (EU) 2022/2065 (Digital Services Act).
15. Federal Trade Commission (USA), Guides Concerning the Use of Endorsements and Testimonials in Advertising (revised 2023), 16 CFR Part 255.
B. Primary Sources — Cases
1. FTC v. Cure Encapsulations Inc., 2019 WL 4601393 (E.D.N.Y. 2019).
2. Shreya Singhal v. Union of India, AIR 2015 SC 1523.
3. State of Maharashtra v. Sayyed Umar Sayed Abbas, (2022) 3 SCC 124.
C. Secondary Sources — Books
1. Narayan, P.R., Cyber Law: The Law of Information Technology (Gogia Law Agency, 2021).
2. Narayanan, Arvind, et al., The Anatomy of Social Media Manipulation (Princeton University Press, 2021).
3. Law Commission of India, Report No. 285: Review of IT Act, 2000 (Ministry of Law and Justice, 2022).
D. Secondary Sources — Journal Articles
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2. Banerjee, Rituparna, ‘Fake Reviews, Ghost Endorsements and the Crisis of Authenticity in the Creator Economy’, (2023) 4 Asian Journal of Digital Law 66.
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6. Iyer, Krishnaswamy, ‘Intermediary Liability Under the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021’, (2022) 34 National Law School of India Review 22.
7. Joshi, Priyanka, ‘Data Privacy, Targeted Advertising and the Influencer Economy’, (2022) 2 Digital Law and Policy Review 19.
8. Khanna, Vikramaditya, ‘Corporate Criminal Liability and Brand-Influencer Collusion’, (2022) 9 Journal of Corporate Law Studies 101.
9. Mishra, Ananya, ‘Endorsement Disclosures and Consumer Protection: Evaluating ASCI Guidelines’, (2023) 9 NUJS Law Review 55.
10. Patel, Dixit, ‘Mens Rea in Digital Fraud: Reconciling Classical Criminal Law with Technology-Mediated Deception’, (2022) 5 National Law School of India Review 67.
11. Prasad, Kamini, ‘Towards a Unified Digital Influencer Liability Framework in India’, (2023) 15 Indian Journal of Law and Technology 9.
12. Ramakrishnan, Sudha, ‘Platform Governance and Influencer Responsibility’, (2023) 8 Socio-Legal Review 78.
13. Rao, Madhavan, ‘Criminal Conspiracy and Digital Collusion: Influencers and Brand Liability’, (2021) 6 Indian Journal of Criminology 33.
14. Reddy, Suresh, ‘Balancing Free Speech and Consumer Protection in the Age of Social Media Influencers’, (2022) 5 National Law School Journal 39.
15. Sharma, Priya and Mehta, Ankit, ‘Digital Deception: Criminal Liability of Social Media Influencers under Indian Law’, (2023) 3 Indian Journal of Law and Technology 112.
16. Singh, Rajeev Kumar, ‘The Evolution of Cyber Law and Influencer Accountability in India’, (2021) 7 NUJS Law Review 89.
17. Tiwari, Alok, ‘Financial Influencers and Pump-and-Dump Schemes: Regulatory Responses’, (2023) 11 Indian Journal of Finance and Banking Law 45.
18. Verma, Sunita, ‘Food Safety and Standards Authority of India: Regulating Health Claims by Influencers’, (2023) 12 Journal of Consumer Policy 88.
19. Banerjee, Rituparna, ‘Fake Reviews, Ghost Endorsements and the Crisis of Authenticity in the Creator Economy’, (2023) 4 Asian Journal of Digital Law 66.
20. ASCI, Influencer Compliance Report 2022–2023 (Advertising Standards Council of India, 2023).
