Drafting influencer contracts: key compliances under the ASCI and DPDP Act

Drafting influencer contracts requires precise integration of advertising self-regulation obligations under the Advertising Standards Council of India (ASCI) and personal data compliance under the Digital Personal Data Protection Act, 2023 (DPDP Act). A legally robust influencer agreement must allocate responsibilities for disclosures, data handling, liability, and performance while ensuring adherence to applicable Indian statutory and regulatory standards.‑regulation obligations under the Advertising Standards Council of India (ASCI) and personal data compliance under the Digital Personal Data Protection Act, 2023 (DPDP Act). A legally robust influencer agreement must allocate responsibilities for disclosures, data handling, liability, and performance while ensuring adherence to applicable Indian statutory and self‑regulatory standards.

Careful contract drafting reduces legal exposure to risk, aligns to commercial expectations, and ensures that it is in compliance with influencer marketing legal compliance India norms and evolving regulatory enforcement trends. This article explains the essential legal requirements and contractual best practices in clear, actionable terms.

What legal requirements must be embedded when drafting influencer contracts?

Drafting influencer contracts in India requires integrating statutory, regulatory, and self-regulatory obligations to ensure transparency, consumer protection, and adhere to the data protection regulation . Contracts must explicitly define responsibilities and risk allocation to align with applicable laws.

Influencer agreements cannot be limited to commercial terms alone; they must incorporate compliance measures that mitigate legal exposure and enforce accountability for both brands and influencers.

Core compliance elements

Influencer contracts must be drafted to be inclusive of the following compliances:

Mandate ASCI-compliant disclosures for all paid or materially connected promotions to satisfy ASCI guidelines for endorsements.
Address DPDP Act obligations for digital content, including personal data collection, storage, and processing for campaign analytics or mailing lists.
Embed consumer protection safeguards under Indian law, requiring truthful, substantiated claims and adherence to consumer protection in online endorsements standards.
Include due diligence, indemnity, and breach remedies, ensuring enforceability under social media influencer contracts India and the broader legal framework for influencer agreements.

Key legal pillars

ASCI Guidelines for Endorsements — Self-regulatory codes that require any advertisement to be legal, decent and honest and must ensure such advertisement is not hazardous in nature. Thereby any contract between the influencer and the brand is mandated to have a clear,and prominent disclosure of material connections between brands and influencers which forms the baseline of influencer marketing legal compliance India.
Consumer Protection Act enforcement mechanisms — The authority under Consumer Protection Act have issued various guidelines mandating the obligations which require both influencers and brands accountable for misleading claims or undisclosed promotions.
DPDP Act obligations for digital content — The regulations impact the manner in which the influencer and the brand manage the personal data as the act’s key objective are governing collection, processing, and storage of personal data during campaigns, including consent requirements, purpose limitation, and data subject rights.
Contract law principles under the Indian Contract Act, 1872 — The Contract Act governs the validity and enforceability of any contract in India and in reference to the influencer contract it serves the objective of governing enforceability of representations, warranties, indemnities, and remedies in all social media influencer contracts India.

Non-compliance with these pillars is not merely procedural but is crucial to comply with the provisions of the regulatory requirements in India ensuring that the contract is enforceable as well as mitigate the risk. While, the ASCI operates as a self-regulatory body, failure to adhere to its guidelines can trigger statutory scrutiny, regulatory penalties, or reputational damage, emphasizing the necessity of embedding these requirements in every influencer agreement.

How should influencer agreements comply with ASCI guidelines?

Drafting influencer contracts requires explicit clauses that enforce compliance with ASCI guidelines for endorsements. Contracts must clearly define the influencer’s disclosure obligations and prohibited practices to ensure transparent marketing and reduce legal and reputational risk.

Mandatory disclaimers and clear labelling of endorsements

Under the regulatory regime the contracts are mandated to included clauses which defines the following responsibilities on the influencers:

Disclose material connections prominently in all sponsored content even in the instance where such disclosures arises from the unbiased opinion. .
Use clear and unambiguous disclosure which should be made visibile in the manner as set out by the guidelines for influencer published by ASCI and such disclosure includes but is not limited to tags such as #Ad, #Sponsored, or #PaidPartnership .
Ensure that disclosures are platform-specific, including overlays in video content, text in captions, or verbal disclosures in live streams.

These measures directly support disclosure requirements for paid promotions and reinforce influencer marketing legal compliance India standards.

Prohibited practices under ASCI codes

The influencer contract must also prevent prohibited behaviours, which include but is not limited to:

Making false or misleading claims about a product or service.
Posting endorsements without required disclaimers or hiding material connections.
Promoting products that are regulated or restricted without proper expertise or approvals.
Altering content or claims provided by the brand in a way that misleads consumers.

Embedding these terms in the Contract ensures that the contract is in compliance with the legal framework for influencer agreements by aligning it with the with ASCI and consumer protection in online endorsements principles.

Case examples of ASCI enforcement actions

The implementation of the ASCI requirements in the social media influencer contracts in India not only serves a means of legal compliance but also enable the brand to protect its reputation against risk from any scrutiny. Thus, the social media influencer contract must ensure inclusion of provision which not only allows the brand owner to ensure that the social media influencer has adhered to regulatory requirements but also grant right of review/approval for any content which is published with respect to the brand in furtherance to the influencer agreement. In the past the ASCI actions have demonstrate the severity of the provisions and the practical importance of compliance. Certain examples of such actions are as follows:

ASCI has publicly flagged influencers for omitting sponsorship disclosures in Instagram and YouTube campaigns.
Enforcement actions have included mandatory corrections and content removal, even when brands and influencers had no direct intent to mislead.

What are the key contractual protections for claims and substantiation?

Drafting influencer contracts requires ensuring that all promotional claims are legally compliant, verifiable, and substantiated. Contracts must clearly define the responsibilities of both influencers and brands to prevent misleading endorsements and mitigate regulatory or reputational risk.

Truthful and substantiated endorsements

Influencer contracts should obligate content creators to:

Make only verifiable claims supported by documented evidence or brand-provided data;
Avoid exaggerated statements, including unrealistic performance, health, or financial claims without appropriate certification;
Refrain from promoting regulated products (e.g., healthcare, financial services) without the required expertise or legal clearance.

Representations and warranties play a vital role in the drafting of the influencer agreement, and the clauses contains terms which are stipulating that:

The influencer has personally used or tested the product/service where required;
All claims are factually accurate and backed by verifiable evidence;
Content will not mislead or deceive consumers, directly supporting disclosure requirements for paid promotions.

Indemnity clauses for misleading claims

Indemnification requires that one party of the contract protects the other party against any damages or loss arising out of the agreement. Contracts should provide mutual indemnities to allocate liability:

The influencer indemnifies the brand for any losses arising from unsubstantiated, false, or misleading claims;
The brand indemnifies the influencer for claims resulting from inaccurate or incomplete information provided to the influencer.

How do DPDP Act obligations affect influencer contracts?

Drafting influencer contracts must take into account DPDP Act obligations for digital content when influencers or brands process personal data in connection with campaigns.

Applicability of the DPDP Act

The DPDP Act, 2023 governs the processing of digital personal data and applies to any fiduciary (including brands and influencers processing personal data of Indian users) that determines the purpose and means of data processing.

Under Section 6, consent must be:

free, specific, informed, unconditional, and unambiguous, with a clear affirmative action evidencing agreement;
and data principals have the right to access, correct, and erase their data.

Contract clauses for DPDP compliance

Contracts should include provisions to:

Define Data Roles — Clarify whether the brand, influencer, or third party is the Data Fiduciary i.e. the party which is collecting and determining the data processing.
Data Handling Protocols — Mandate that the parties are in compliance with notice, purpose limitation, minimisation, and data retention principles under the Act and its implemented Rules.
Security Measures — Mandate appropriate technical and organisational safeguards for data protection by both the influencer and brand.

What clauses are essential in a social media influencer contract?

Drafting influencer contracts requires the inclusion of precise clauses that define the roles, responsibilities, and obligations of both influencers and brands. These clauses form the backbone of enforceable agreements, ensuring compliance with ASCI guidelines for endorsements, DPDP Act obligations for digital content, and general principles of consumer protection in online endorsements.

Scope of work and deliverables

The contract should define the exact scope of influencer engagement:

Platforms and content types: Specify the social media platform for which such content is being produced for example the social media can be Instagram, YouTube, Facebook, or other channels.
Frequency and format: Outline number of posts, stories, videos, or live sessions, including word count or duration for the advertisement which are being published pursuant to the influencer contract..
Key messages and branding: Ensure messaging aligns with disclosure requirements for paid promotions and avoids misleading claims.
Approval rights: Provided the brand, right to review content prior to publication to reduce risk and ensure that influencer’s post and marketing is in compliance with the applicable laws in India.

Payment terms and performance metrics

Contracts must explicitly set out financial arrangements and performance measures:

Payment structure: Fixed fees, milestone-based payments, or performance-linked compensation.
Conditions for payment: Tied to content approval, adherence to ASCI disclosures, or delivery of analytics reports.
Performance metrics: Engagement rates, views, or reach targets, if applicable.
Withholding rights: The brand may withhold payment for non-compliance with legal framework for influencer agreements or contract obligations.

These clauses protect both parties and incentivize compliance with consumer protection in online endorsements and other regulatory requirements.

Intellectual property and content ownership

Contracts should clearly define the rights to content produced:

Ownership of content: Whether the influencer retains rights or grants the brand exclusive or limited usage rights.
Usage permissions: Scope of distribution, including digital channels, social media platforms, websites, or advertising campaigns.
Third-party licensing: If music, images, or other materials are used, the contract should clarify licensing responsibilities.
Moral rights and modifications: Whether the brand may modify content and the conditions for attribution.

Well-drafted IP clauses prevent disputes and ensure alignment with social media influencer contracts India best practices.

Confidentiality and non-disparagement clauses

An influencer contracts deals with product or services which may also give rise to sensitive commerical confidential information. The influencer contract must thus protect sensitive commercial information:

Confidentiality obligations: Prohibit disclosure of campaign strategies, brand insights, or contractual terms.
Non-disparagement: Restrict influencers from posting negative statements about the brand during and after the contract term.
Duration and scope: Specify how long the confidentiality obligations shall apply post-engagement.
Enforcement remedies: Include remedies for breach, including injunctive relief or indemnification.

How are consumer protection laws incorporated into influencer contracts?

Consumer protection principles intersect with Drafting influencer contracts at the point where influencer content affects consumer behaviour.

Role of the Consumer Protection Act

While ASCI is self regulatory, consumer protection norms under the Consumer Protection Act and Central Consumer Protection Authority (CCPA) guidelines classify misleading endorsements as unlawful. Regulators can initiate actions, impose penalties, or order discontinuation of misleading ads even where ASCI has acted. ‑regulatory, consumer protection norms under the Consumer Protection Act and Central Consumer Protection Authority (CCPA) guidelines classify misleading endorsements as unlawful. Regulators can initiate actions, impose penalties, or order discontinuation of misleading ads even where ASCI has acted.

Contracts should therefore:

require influencers to avoid false or misrepresented advertising;
include definitions of prohibited claims pertaining to the product or services;
mandate substantiation of assertions;
allow for proactive risk review by legal teams of the brand prior to any publication of advertisements.

Embedding consumer protection obligations at contract stage reduces downstream enforcement risk.

What are the penalties for non-compliance when drafting influencer contracts?

Drafting influencer contracts requires explicit recognition of potential penalties for failing to comply with terms of the contract and the applicable laws. Non-compliance exposes both brands and influencers to regulatory, financial, and reputational risks.

Contracts must allocate responsibility and define remedies to ensure accountability, enforceability, and adherence to influencer marketing legal compliance India standards.

Reputational and corrective actions under ASCI

Public flagging: ASCI may publicly identify influencers or brands that fail to disclose material connections or violate advertising norms.
Content remediation: Non-compliant posts may be required to be corrected, edited, or removed to comply with ASCI guidelines.

Consumer law penalties

Monetary fines: The Consumer Protection Act imposes fines for misleading or deceptive endorsements.
Remedial orders: Regulatory authorities may direct removal of non-compliant content or issue product recalls.
Civil liability: Brands and influencers may face claims from consumers for damages caused by false or unsubstantiated claims.

Data protection penalties under the DPDP Act

Fines and adjudication: The DPDP Act, 2023 comprises of provisions for the imposition of penalties for non-compliance of various provisions of the act.
Corrective directives: Data fiduciaries may be required to implement safeguards, notify affected users, or cease certain processing activities.
Legal accountability: Influencers who collect and process the user’s data without obtaining valid consent or in violation of any provisions of the act can be held liable for the violation of act.

Contractual safeguards

Contracts should define consequences of non-compliance clearly, including:

Withholding fees: Payment may be withheld by the brand until corrective measures are taken is taken by the influencers which are in accordance with the terms of the influencer contract.
Indemnity obligations: Parties indemnify each other against losses arising from terms of the influencer contract.
Termination rights: Persistent or material violations may justify termination of the agreement.

How can brands and influencers manage risk in digital endorsements?

Risk management should be proactive and contractual:

Compliance ready contract — Use vetted and compliance ready templates of the contract that ensure that the compliance obligations are ascertained prior to any performance.
Prepublication Review — Require review and approval by brand’s legal/compliance teams before any post to prevent damaging brand reputation and compliance of law.‑publication Review — Require review and approval by brand legal/compliance teams before any post.
Record Keeping — Maintain records of disclosures, consents, and data processing activities as evidence of compliance.

These practices align contracts with operational requirements of the influencer marketing and ensure that the performance of such contract is auditable.

FAQs: Drafting influencer contracts

Can an influencer legally promote a product without disclosing payment?

No, the influencer is legally obligated to discloser the payment while promoting the product. The ASCI and the CCPA guidelines mandate that an influencer is liable to disclose any sponsored advertisement where there is a material connection between influencer and brand.

Are influencer contracts required for all social media collaborations?

Yes, it is advised that the influencer must enter into into a formal contract for any collaboration where compensation or material benefit is provided and such contract shall be formalised to provide clauses which are in compliance with ASCI and applicable laws.

How often should influencer contracts be updated for legal compliance?

It is suggested that the contracts be reviewed and updated annually or in the event of amendment in the regulations.

What is the role of platforms like Instagram and YouTube in enforcing compliance?

Platforms provide acts only disclosure tools and does not absolve the parties from their contractual and regulatory obligations.

Can personal data collected during influencer campaigns be shared with third parties?

The data can be shared with third party only where consent under the DPDP Act has been obtained by providing a data privacy notice and the sharing of the data has been clearly defined in the data privacy notice.

Are there standard clauses recommended by ASCI for contracts?

ASCI does not prescribe contract language, but contracts must provide clauses which ensure the compliance of the ASCI disclosure requirements and the obligations on influencers and brands explicitly.

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