Sophie* was a popular Australian lifestyle influencer. She had over 200,000 followers, and a lot of them had followed her for years.
One day, she partnered with a skincare brand that promised “miracle” anti-aging results.
Trusting the brand, she raved about it in a few Instagram stories, tagging the company and praising its “clinically proven” results.
But a few short weeks later, Sophie found herself in hot water. And she got really scared.
The Australian Competition and Consumer Commission (ACCC) opened an investigation into the claims she made, alleging she had engaged in misleading and deceptive conduct.
To make matters worse, the skincare brand she was raving about had used a name similar to an existing trademark. Sophie’s use of it in her content made her an unintentional party to trademark infringement.Sophie’s story is not unique.
In a digital age where attention is monetised, creators are expected to act like businesses.
But many influencers don’t realise they’re also expected to follow the law like businesses.
Here’s what every creator needs to know to stay legally safe while building their brand.
The business of influence
The world’s most valuable currency is attention.
And that’s why influencing is big business.
Social media influencing is now a legitimate career path.
Sponsored posts, affiliate links to product collaborations, subscription platforms – they all now form the bedrock of a lucrative profession.
Brands spend millions each year to tap into the trust creators build with their audiences.
But ultimately, with great influence comes great responsibility.
And serious legal risks if you’re not careful.
Being an influencer means you’re not just a content creator. You’re a marketer, a publisher, and sometimes even a brand in your own right.
What does that mean? It means the legal expectations placed on you are more significant than you might think.
Legalities for influencers that you need to know
The legal side of influencing is important for any online marketer to know.
Breaching copyright or trademark laws
The Australian Consumer Law (ACL), which forms Schedule 2 of the Competition and Consumer Law 2010 (Cth), prohibits misleading or deceptive conduct in trade or commerce.
If you publish content that promotes a product with overly exaggerated claims, leave out vital disclaimers that go to the heart of the product, or even fail to disclose that you were paid or gifted a product, you could be in breach of the ACL.
This is true even if you didn’t mean to mislead your audience.
Influencers must ensure that any claims they make about a product or service are truthful, can be substantiated, and are not deceptive.
“Clinically proven.” “Guaranteed results”. Words like that are all red flags if they can’t be backed up.
Breaching contracts with sponsors
Many influencers sign contracts with brands or agencies. It is a useful tool for influencers to get their name out there.
But, unfortunately, they don’t always read the fine print.
For example, if you’ve signed a contract that contains exclusivity clauses or non-compete agreements, a collaboration with a rival brand could cost you more than you were paid.
Misleading advertising
In 2023, ASIC (Australian Securities and Investments Commission) and the ACCC cracked down on misleading advertising practices among influencers.
The ACCC conducted an “influencer sweep” and found that 81% of the 118 social media influencers reviewed were making posts that raised concerns under the Australian Consumer Law.
Failing to disclose sponsored content, using deceptive affiliate links or making unverified claims are all examples of misleading advertising.
ASIC also flagged concerns about financial influencers who were giving investment advice without a license.
Breaching intellectual property rights
Using copyrighted music, brand names or images in your content without permission can get you into legal hot water.
In Sophie’s case, tagging a brand with a trademarked name landed her in trouble, even though she didn’t own or create the product.
Trademark infringement, violations of copyright law and unauthorised use of someone else’s content can all lead to takedown notices, penalties or unexpected legal proceedings.
For finfluencers: Breaching financial regulations
In 2022, the Federal Court found that influencer Tyson Robert Scholz had breached the Corporations Act 2001 (Cth) for running a financial services business without an Australian financial services licence.
Known online as “ASX Wolf,” he was found to be offering financial advice – offering stock market tips and running seminars – without holding that licence.
ASIC estimated that ASX Wolf had earned around $1.1 million between October 2020 to August 2021 from seminars and Discord subscriptions. In 2024, ASIC successfully bankrupted Scholz.
His case served as a warning: if you’re offering financial or investment advice in Australia, you must be properly licensed under the provisions of the Corporations Act 2001 (Cth).
The penalties for breaching financial laws can include massive fines – or even jail time. Know your content marketing legal requirements or pay the consequences.
What should creators do to legally protect themselves?
There are a few things that influencers can do right now to ensure they protect themselves from legal backlash.
Review the Influencer Code of Ethics
The Australian Association of National Advertisers (AANA) has published a Code of Ethics.
This Code outlines key principles for transparency, disclosure accuracy and accountability within Australian advertising.
It is important to make sure you’re familiar with these guidelines before accepting your next brand deal.
Understand your obligations under the Australian Consumer Law
Your followers are not just random people scrolling through their phone and liking your posts. In many circumstances, the law will treat them as consumers.
Understand your obligations around disclosing when your content is sponsored and – importantly – how to properly disclose that it is sponsored.
The Australian Consumer Law is the key influencer advertising law that you’ll need to know when running an influencer business.
Keep your contracts in writing
Don’t rely on DMs to constitute your contact with brands.
Formalise agreements with written contracts that clearly outline deliverables, deadlines, payment terms and dispute resolution processes.
Read them thoroughly – or better yet, get a legal professional to do it for you. You also do not want to sign up to an exclusivity arrangement when you don’t even realise that is what you’re doing.
Understand copyright and trademarks
The author of any type of content (music, literature, video, and so on) has protections under the Copyright Act 1968 (Cth).
You therefore should only use music, images and logos you have permission to use and ensure that permission is documented. You should also understand the exceptions to breaching copyright laws so you understand what the parameters are when it comes to using other people’s content.
You should also avoid naming products or businesses in your posts that may infringe on someone else’s trademark or copyright protections.
Hire an entertainment lawyer to ensure you’re covered
Most importantly, don’t try to DIY your way through complex legal matters.
An entertainment lawyer can help you:
- Review contracts before you sign them
- Understand your disclosure obligations
- Avoid intellectual property pitfalls
- Represent you if something goes wrong
Looking for an entertainment lawyer?
There is a swathe of influencer marketing regulations in Australia.
If you’re an influencer, content creator or digital entrepreneur, it’s not enough to just create great content. You also need to protect your brand, reputation and future.
At Prosper Law, we can provide advice in media, entertainment and influencer legal matters. Whether you need help reviewing a brand deal or defending a claim, our team is here to make sure your business is legally sound.
Don’t let legal trouble catch you by surprise. Contact Prosper Law today and get the legal backup your influencer business deserves.
* Sophie is a fictional person. Her story was used for illustrative purposes only.
