What are the legal requirements around using influencers?

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What are the legal requirements around using influencers?

February 15, 2022         Ava Akbarian

Influencer marketing has become a popularised method to promote brands, goods and services due to the rapid growth of social media platforms such as Tik Tok and Instagram. It is important to ensure you are taking into account legal considerations whether you are collaborating with influencers, or an influencer working with brands.

The Australian Consumer Law Section 18(1)

Under the Australian Consumer Law (ACL)  a person must not engage in any conduct that is likely to mislead or deceive. 

For influencers, this may be applicable where there are inconsistencies with the advertisement and the product, if there are false or misleading claims made about pricing or promotions, or if the advertisement provides an exaggerated perception of the product and its features.

Any breaches of the ACL could result in significant fines and penalties enforced by the Australian Competition and Consumer Commission.

How do I make sure I am complying with the law?

Whilst they are not legally enforceable, there are regulations in place that may assist influencers and brands to comply with Australian legal requirements.

The Australian Association of National Advertisers (AANA) Code of Ethics

Section 2.7 of the AANA requires advertising to be clearly distinguishable.

When an influencer accepts money or free products in exchange for product advertisement the relationship should be ‘clear, obvious and upfront’ to an audience.

Influencer marketing should never be disguised as news, user-generated content or independent market research.

The Australia Influencer Marketing Council (AIMCO) Code of Practice

In line with the AANA, AIMCO provides clarification on how to ensure influencer promotions are clearly distinguishable through the use of hashtags, or any tools specific to the social media application, including partnership tools, branded content or sponsored posts.

AIMCO recommends the following hashtags:

  • #Ad; 
  • #Advert; 
  • #Advertising; 
  • #PaidPartnership; 
  •  #PaidPromotion; or
  •  #Sponsored.

When do I need to disclose ads?

As an influencer: 

For best practice, it is recommended to always disclose advertisements even if you are merely gifted with a product or service with no additional payment.

As a brand, business or company:

There is no requirement for brands, businesses or companies to disclose an advertisement when reposting influencer content onto their platforms. It is considered to be clear to the audience that the content is commercial in nature.

Summary:

  • Make sure that you do not post content that may be likely to mislead or deceive consumers.
  • It is advised to always disclose advertisements by using hashtags or declaring paid partnerships using features within the application.
  • Brands are not required to disclose advertisements where it is clear the advertisement is commercial in nature.

It is important that influencers and companies are aware of the legal considerations and implications of advertising on social media before posting content. 

To ask any questions or have an influencer agreement prepared, please feel free to contact a lawyer at OpenLegal by filling out the form on this page or calling 1300 337 997.

About Ava Akbarian

Ava works in the legal content team at OpenLegal while studying in her fourth year of Bachelor of Laws and Communications (Journalism) at the University of Technology Sydney. Her interests are legal reporting, court reporting and medical law.