Influencer Marketing Laws in Australia 

Overseen by the Australian Competition & Consumer Commission (ACCC), Influencer Marketing Laws in Australia are governed by the Australian Consumer Law (“ACL”) and various industry codes. In regulating commercial dealings over social media, strict requirements must be complied with to ensure protocols are followed and consumers are adequately considered. As influencer marketing includes social media promotions, it is governed by the same consumer laws which are enforced in protecting consumers from malpractice from businesses. The ACCC also employs various industry codes to ensure this malpractice can be handled. This article will outline what constitutes influencer marketing in Australia, analysing the role the ACCC in governing it, and the regulations and standards which influencers and businesses are held to. It will also review the tax requirements which both influencers and businesses are bound by in promoting products through social media marketing. 

1. What is influencer marketing  

Influencer marketing is the employment of a recognised individual to promote and advertise the products of a business on social media. It includes various forms of social media in which creators, hired by a business, commend a certain good or service at the request of the business, usually for monetary considerations.  

Influencer marketing pertains consumers as well as social media, thus, identical rules apply in enforcing these regulations. This ensures the same standards are upheld industry-wide, and includes the regulation of: 

1. A business’s posts on its own social media accounts,  

2. advertising on other social media platforms,  

3. social media posts that a business pays for, and 

4. social media posts that a business offers incentives to influencers to make 

2. Role of ACCC in governing Influencer Marketing Laws 

The ACCC is the primary regulator in enforcing these laws and guidelines relating to influencer marketing across social media. They play an extensive role in ensuring guidelines are maintained, including: 

1. Providing guidance on the operation of consumer law to businesses to proactively prevent false or misleading claims 

2. Accept reports of issues where people believe a business is acting unaccordingly as per its requirements under the ACL and industry codes 

3. Require businesses prove claims made on social media networks (eg. Hismile Pty Ltd (June 2026) – Hismile forced to pay $138,600 in penalties after the ACCC issued seven infringement notices for false and misleading social media advertising) 

4. Investigate (and if necessary, take enforceable action) against businesses for false and misleading claims on social media to ensure compliance 

However, the ACCC cannot resolve disputes about false or misleading representations made specifically by individuals, only by businesses. 

3. Regulating influencer marketing 

3.1 Legislation – ACL 

As these promotions are performed while acting “in trade or commerce”, the ACL is enforceable and businesses and influencers can be held liable for any misconduct. Businesses are allowed to engage influencers in their marketing, however, they must follow the legislation requirements. There are two sections primarily associated with influencer marketing under the ACL: 

1. Section 18, prohibiting any misleading or deceptive conduct in a business’ promotion.  

2. Section 29, involving the prohibition of false or misleading representations in the business’ marketing. 

The ACL considers influencer marketing as misleading if influencers do not disclose that their promotion is an advertisement. Consumers may believe the influencer is being honest when they are in fact being paid by a business to promote a product, with gifts being considered a non-monetary consideration (form of payment) if a business requests promotion of a product. Businesses should ensure the influencers they hire comply with regulations as they are responsible for the promotion regardless of whether the promotion is posted through their platform or not. Thus, it is essential influencers remain truthful and compliant in their promotion, as agencies such as the ACCC can enforce these rules on businesses, who mandatorily must comply with legislation.  

Businesses could manage this compliance through setting rules for the influencers they are hiring. Businesses can protect themselves from any unwanted liability through setting contractual obligations. Examples of this would include the business setting a contract with the influencer with clauses to ensure they do not put either at risk of breaching any laws in promoting the products. Businesses could also review promotions before they are published to ensure all laws are followed. This would ensure influencers are not misleading their audience or performing any deceptive conduct, allowing for the protection of consumers and maintaining a legally sustainable approach to promote their products. 

3.2 Industry Codes 

Influencer marketing also maintains its legal compliance through industry codes. Being provided to protect businesses and consumers, the industry codes regarding marketing and advertising are mostly self-regulated, relying on business’ self-governance to stay in check. Two key codes within the industry include the AANA Code of Ethics, and the AiMCO Influencer Marketing Code of Practice. 

Governed by the Australian Association of National Advertisers (AANA), the AANA Code of Ethics is the primary self-regulatory standard for advertising and marketing communications in Australia. It regulates businesses and influencers to ensure fair trade while also protecting consumers through prohibiting deceptive, misleading, and false practices. This protects society through its consideration of consumers, while maintaining fair competition in a legal and honest manner as its enforcement, adjudicated by the Ad Standards Community Panel, is reliant on public and competitors’ complaints to hold them accountable. 

Also, there is the Australian Influencer Marketing Council (AiMCO) Code of Practice. This Code of Practice establishes national standards, transparency rules, and ethical guidelines for Australia’s influencer marketing industry. It targets all in the industry (people and businesses alike), enforcing the notions of accountability and brand safety in building transparent systems to best fit industry practices. Some regulations include their requirements surrounding advertising disclosure, hashtag guidelines, and agreements within their contracts and covering aspects like remuneration, content usage, and intellectual property.  

An important differentiation between these regulations and legislation should be established. As these regulations are merely self-regulated guidelines, they are not legally binding and are simply in place to promote compliance rather than legally enforce it on businesses and influencers. However, there is significant ethical and legal weight associated with them. There may be a contractual obligation to follow these regulations, where an agreement clause might specify an influencer must follow the guidelines. Also, the guidelines are also closely related to the ACL, being made alongside legislation so violating the guidelines could potentially mean the legislation has also been breached. Thus, compliance is highly recommended for both influencers and businesses to avoid serious repercussions. 

4. Tax Requirements 

Another point that should be emphasised is the tax requirements surrounding influencer marketing. As influencers are working for and being remunerated by a business, their tax obligations would be maintained as if they are a standard employee regardless of their lack of formal employee status, especially for Income Tax reasons. All income must be disclosed and recorded, whether it is provided through monetary or non-monetary considerations.  

Any money or treat (eg. any sort of gift, sponsorships, free products, etc) provided in the course of their employment is considered income if it was provided in exchange for promotional services. Although, this distinction is necessary as unsolicited packages are an exception to this Income rule. Also, influencers are also still subject to GST registration. Under ATO requirements, Influencers with an annual turnover exceeding $75,000 must register for GST, having to charge 10% on any commercial dealings arranged with businesses. 

Key Takeaways 

In conclusion, Influencer Marketing is an ever-evolving industry in Australia. Businesses are subject to authorities such as the ACCC in outsourcing their marketing promotions through influencers, governing their compliance through using Marketing Laws. Businesses and Influencers are also subjected to the legislation and regulations in the industry, with the legally mandated ACL as well as the self-regulated Industry Codes of Practice allowing the maintenance of ethical practices in the industry. 

It is also worth noting and understanding that although influencers may not be considered formal employees, they are still held under the same tax obligations as a standard employee, being liable to any Income tax and GST requirements if their turnover exceeds a certain level. 

How OpenLegal Can Help 

OpenLegal can assist businesses and influencers in their marketing strategies. This can include providing advice to businesses and influencers on what disclosures must be made, and drafting contractual agreements businesses could enforce on the influencers they hire.  

If you are concerned about protecting your social media promotions, OpenLegal offers a free 15-minute consultation to discuss your matter and how we may be able to assist.  

Visit openlegal.com.au to learn more. 

Daniel Zahrooni | Legal Intern 

*NOTE: This article is merely general advice not to be taken as formal legal advice.