Drafting effective disclaimers and T&Cs for influencers/agencies in India: liability, IP, and ASA guidelines alignment

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Drafting effective disclaimers and T&Cs for influencers/agencies in India: liability, IP, and ASA guidelines alignment

Table of Contents

Drafting effective disclaimers and Terms & Conditions (T&Cs) for influencers and agencies in India in 2025, with clause libraries, checklists, and templates aligned to the latest ASCI Influencer Guidelines and the Indian legal landscape for advertising, IP, and liability allocation.

The quick answer

  • Disclosures must be upfront, prominent, and format-specific; burying them in hashtags or “more” is non-compliant under ASCI’s current guidance.
  • T&Cs should hard-wire: compliance with ASCI, clear IP ownership/licensing of created content, robust warranties against misleading claims, and mutual indemnities with caps and carve-outs.
  • Health/finance niches need extra safeguards: credentials disclosure and substantiation; ASCI has enhanced rules and expects proof on request.

Why disclaimers and T&Cs matter in 2025

ASCI’s updated influencer guidelines emphasize material-connection disclosures across all formats and platforms, with time-on-screen minimums for video and mandatory prominence in text and live streams; compliance gaps are widely reported, and brands are tightening contract terms to avoid regulatory and reputational risks.

Key risks to control:

  • Hidden or ambiguous disclosures.
  • Misleading or unsubstantiated claims.
  • IP ownership disputes for creator content and brand assets.
  • Sector-specific qualification and credential failures (health/finance).

ASCI-aligned disclosure rules to embed in T&Cs

What must be disclosed

  • Any material connection: payment, gifts, affiliate links, discounts, travel, employment, or any benefit that could affect objectivity.

How to disclose (format-specific)

  • Static image: disclosure superimposed and clearly visible.
  • Short video ≤15s: disclosure visible for at least 3 seconds.
  • Video 15s–2m: disclosure visible for at least one-third of the video.
  • Video ≥2m: disclosure visible for the entire segment discussing the brand.
  • Live/Audio: announce at start and end; add disclosure in caption/description if the post remains visible.
  • Text posts: disclosure before the main text so it is seen without clicking “more.”

Accepted labels

  • “Advertisement”, “Ad”, “Sponsored”, “Collaboration”, “Partnership”, “Affiliate”, “Free gift”, “Employee”, or platform-native disclosure tools; avoid ambiguous tags.

Credentials (health/finance)

  • When giving advice or claims in BFSI or health/nutrition, influencers must possess and disclose relevant qualifications; be ready to produce proof on request.

Enforcement signal

  • ASCI’s 2025 scorecards show significant non-compliance; brands should audit and require corrective posts if disclosures are missing.

Clause library: copy-ready language

A) Disclosure and compliance
“The Influencer shall comply with the ASCI Guidelines for Influencer Advertising and disclose any material connection using clear labels (e.g., ‘Ad’, ‘Sponsored’, ‘Collaboration’) in a prominent and format-appropriate manner: superimposed on images/videos, visible for at least 3 seconds in videos ≤15 seconds, for one-third of videos 15 seconds–2 minutes, and for the full relevant segment in longer videos; such disclosures shall be announced at the start and end of live streams and audio posts, and appear before the ‘more’ break in text posts.”

B) Claims and substantiation
“The Influencer shall not make misleading, unsubstantiated, or exaggerated claims. Any performance or efficacy claims must be supported by evidence acceptable under ASCI and applicable law, and any mandatory disclaimers or risk warnings provided by the Brand shall be included verbatim.”

C) Health/finance credentials
“If the content concerns health, nutrition, medical, banking, financial services, or investments, the Influencer shall disclose professional credentials and shall not provide advice beyond qualifications. Proof of credentials shall be provided upon request.”

D) IP ownership and license
“Except for Brand Materials licensed by Brand, all content created by the Influencer under this Agreement (‘Creator Content’) shall be owned by [Brand/Influencer] as specified in the SOW. Where Influencer retains ownership, Influencer grants Brand a worldwide, royalty-free, transferable license to use, reproduce, adapt, edit, publish, and communicate the Creator Content on agreed platforms and paid media for the Term and any agreed Tail Period. Influencer warrants that Creator Content does not infringe third-party IP and has secured all necessary rights (including music, images, fonts).”

E) Brand materials and moral rights
“Brand grants Influencer a limited license to use Brand Materials solely to create and publish the Deliverables. Influencer shall not alter trademarks or logos except as approved. Influencer waives moral rights to the extent permitted by law for Brand’s use of Creator Content as edited for the Campaign.”

F) Indemnities
“Each party shall indemnify and hold the other harmless against claims, losses, and expenses arising from (i) breach of this Agreement; (ii) infringement of IP or violation of publicity/privacy rights in their supplied materials; and (iii) non-compliance with ASCI or platform policies. Indemnity shall be subject to notice, defense control, and cooperation. Liability caps and exclusions apply, save for IP infringement, willful misconduct, and personal injury.”

G) Liability cap
“Except for IP infringement, confidentiality breach, willful misconduct, or amounts payable under indemnities, each party’s aggregate liability shall not exceed the Fees paid or payable under the SOW.”

H) Takedown and corrective posts
“On reasonable evidence of non-compliance or rights violation, Influencer shall promptly edit or takedown the content and, where required by Brand or ASCI, publish a corrective disclosure or clarification post at no additional cost.”

I) Platform policy adherence
“Influencer shall comply with the applicable platform’s advertising, branded content, and community guidelines and use any native disclosure tools where available.”

J) Exclusivity and conflicts
“During the Campaign and for [x] days post-last Deliverable, Influencer shall not endorse or promote competing products in the [category] without Brand’s written consent.”

K) Approval workflow
“Deliverables shall be submitted hours prior to posting for Brand review; Brand shall respond within hours. If no response, Influencer may proceed unless Brand has flagged legal/ASCI issues.”

L) Dispute resolution
“Disputes shall be subject to the laws of India and resolved by arbitration seated in [City], by a sole arbitrator. Courts at [City] shall have jurisdiction for interim relief.”

Disclaimers creators should publish with posts

General ad disclosure
“This content is an advertisement/paid collaboration with [Brand]. Opinions are personal. Please read labels and use as directed.”

Affiliate disclosure
“This post contains affiliate links. If a purchase is made, I may earn a commission.

Health/finance disclaimer
“This is not medical or investment advice. Consult a qualified professional. Credentials: [list].”

Performance claims disclaimer
“Results may vary based on individual factors. Verified data/claims on file with brand.”

Placement reminder: Put the disclosure at the beginning of the caption and on-screen, not buried in hashtags.

Approval checklist for agencies

  • Disclosure: correct label, correct placement, time-on-screen per video length.
  • Claims substantiation: evidence available; mandatory warnings included.
  • Credentials: displayed and on file for health/finance.
  • IP: music and footage licensed; logos authorized; no third-party trademarks without clearance.
  • Rights log: store licenses, captions, scripts, and posted URLs for audit.

Contracting models and IP choices

  1. Work-for-hire with assignment to brand: brand-friendly; ensures continuity across campaigns.
  2. Creator-owned with broad license to brand: creator-friendly; specify term, platforms, paid media, edits, and whitelisting.
  3. Dual licensing for whitelisting and paid ads from influencer handle: add platform permissions and spending caps.

Safeguards:

  • Music: prefer library tracks with sync/master clearance; platform music often doesn’t cover brand ads.
  • UGC: if reposting user comments or clips, secure permission unless covered by platform terms.

Sector add-ons (finance and health)

Finance

  • Don’t promise returns; include risk warnings; disclose paid partnerships; require SEBI registration where advice is given.
  • Add “educational only” disclaimers and prohibit individualized advice in DMs.

Health

  • Ban disease cure claims; require approved claims and credentials; include “results vary” and “consult a doctor” language.

Monitoring and remediation

  • Track ASCI advisories and scorecards; audit posts quarterly; maintain a corrective-post SOP.
  • If ASCI informs of a violation, coordinate prompt edits/takedown and corrective disclosure to minimize reputational harm.

Sample T&Cs structure (table of contents)

  1. Parties and definitions
  2. Scope and deliverables (SOW-driven)
  3. Fees, invoicing, and taxes
  4. Compliance (ASCI, platform, laws)
  5. Disclosures and credentials
  6. Content standards and approvals
  7. IP ownership, licenses, and moral rights
  8. Confidentiality and privacy
  9. Representations and warranties
  10. Indemnities and liability caps
  11. Takedown/corrective actions
  12. Exclusivity and conflicts
  13. Termination (for cause/convenience)
  14. Dispute resolution and governing law
  15. Miscellaneous (assignment, force majeure, notices)

Common mistakes and how to avoid them

  • Burying disclosures in hashtags or after the “more” break → move to the start and on-screen.
  • No evidence for performance claims → maintain claim sheets and approvals.
  • Using platform music for branded ad posts → clear sync/master explicitly.
  • Missing credentials for finfluencers/health → disclose and keep proof.
  • Ambiguous IP clauses → specify ownership and license scope in the SOW.

Implementation plan (30 days)

Week 1–2

  • Update master T&Cs and SOW templates with disclosure, IP, indemnity, and credentials clauses.
  • Build a disclosure placement matrix by format and platform; train creators and account managers.

Week 3

  • Launch pre-post checklist and claim-substantiation repository; standardize health/finance disclaimers.

Week 4

  • Run a compliance audit on last 50 posts; remediate with corrective disclosures; set up quarterly scorecard reviews.

When disclaimers are prominent, claims are substantiated, IP is clearly allocated, and agreements embed ASCI’s format rules, influencers and agencies can scale content confidently—and avoid the costly takedowns and reputational damage that 2025’s stricter regime has made more likely.

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