Social media influencers must comply with advertising standards, disclosure requirements, and consumer protection laws. In Australia, social media influencers need to understand their obligations under the Australian Consumer Law and various other legal obligations.
This guide is written by our eCommerce lawyer. We provide an overview of the key legal obligations for social media influencers in Australia.
Key Takeaways
- Influencers in Australia must comply with the Australian Consumer Law (ACL) to avoid misleading or deceptive conduct.
- Clear and upfront disclosure of paid partnerships is mandatory under the ACL and the Australian Association of National Advertisers (AANA) Code of Ethics.
- Social media platforms like Instagram, Facebook, YouTube, and TikTok have specific tools and guidelines to assist influencers in meeting their legal obligations.
- The Australian Competition and Consumer Commission (ACCC) actively monitors influencer marketing practices and enforces compliance with consumer protection laws.
- Non-compliance can result in significant penalties, reputational damage, and loss of consumer trust.
Legal Framework for Social Media Influencers in Australia
Advertising Standards
The AANA Code of Ethics
The Australian Association of National Advertisers (AANA) Code of Ethics is a cornerstone of advertising regulation in Australia. It requires influencers to:
- Ensure all advertising content is honest, fair, and transparent
- Clearly identify advertising and marketing communications as such at the time of exposure
Failure to comply with the AANA Code can lead to complaints being lodged with Ad Standards, which evaluates advertising content against ethical guidelines.
The Role of the ACCC
The Australian Competition and Consumer Commission (ACCC) enforces compliance with the Australian Consumer Law (ACL). Influencers must avoid misleading or deceptive conduct under section 18 of the ACL. The ACCC has the authority to investigate and impose penalties for breaches, making it essential for influencers to accurately represent products and services.
Disclosure Requirements
Australian Consumer Law (ACL)
Transparency is a legal requirement under the ACL. Influencers must:
- Clearly disclose any commercial relationships with brands or businesses
- Use conspicuous language such as #ad or #sponsored to indicate paid partnerships
- Avoid ambiguous or hidden disclosures that could mislead consumers
Ad Standards’ Best Practice Guidelines
While not legally binding, Ad Standards provides best practice guidelines to promote ethical influencer marketing. These guidelines recommend:
- Using simple and clear language for disclosures
- Placing disclosures prominently within the content
Consumer Protection Laws
Misleading or Deceptive Conduct
Under the ACL, influencers are prohibited from engaging in misleading or deceptive conduct. Examples include:
- Making false claims about a product’s benefits or features
- Omitting critical information that could influence consumer decisions
The ACCC actively investigates such cases to protect consumers from harm.
Consumer Guarantees
Influencers must ensure that any claims they make about a product or service align with consumer guarantees under sections 54-61 of the ACL. Products must be:
- of acceptable quality
- fit for their intended purpose
Failure to meet these guarantees can result in legal action against both the influencer and the brand.
Recent Legal Developments
Increased Scrutiny by the ACCC
The ACCC has intensified its focus on influencer marketing practices, conducting sweeps of social media platforms to identify non-compliance. Influencers who fail to meet disclosure or advertising standards risk significant penalties.
Social Media Platforms’ Role
Platforms like Instagram, Facebook, YouTube, and TikTok have introduced tools to help influencers comply with legal requirements:
- Instagram: Branded content feature to tag paid partnerships
- Facebook: Branded content tool for distinguishing advertisements from organic posts
- YouTube: Built-in disclosure tools for labelling paid promotions
- TikTok: Guidelines for using hashtags like #ad or #sponsored
These tools align with Australian regulatory standards and simplify compliance for influencers.
Frequently Asked Questions (FAQs)
What happens if an influencer fails to disclose a paid partnership?
Failure to disclose a paid partnership can result in penalties under the ACL, including fines and reputational damage. The ACCC may also take enforcement action against non-compliant influencers.
Are hashtags like #ad or #sponsored sufficient for disclosure?
Yes, hashtags such as #ad or #sponsored are generally considered sufficient for disclosure, provided they are clear, upfront, and conspicuous.
Can influencers be held liable for misleading claims made by a brand?
Yes, influencers can be held liable if they make misleading claims about a product or service, even if those claims originate from the brand. Both the influencer and the brand may face legal consequences.
Do social media platforms enforce compliance with Australian laws?
While platforms like Instagram and Facebook provide tools to assist with compliance, it is ultimately the influencer’s responsibility to adhere to Australian laws.
How can influencers ensure compliance with consumer protection laws?
Influencers can ensure compliance by:
- Clearly disclosing paid partnerships
- Avoiding false or misleading claims
- Familiarising themselves with the ACL and AANA Code of Ethics
By adhering to these legal obligations, social media influencers in Australia can build trust with their audience while avoiding legal pitfalls.
