The Ad Standards Community Panel upheld a complaint in June 2025 regarding a breach of various sections of the AANA Code of Ethics, including section 2.7, which requires that advertising shall be clearly distinguishable as such.
When does the AANA Code of Ethics apply?
The AANA Code of Ethics applies to advertising and marketing communication where two criteria are met:
- where the marketer has a reasonable degree of control over the material; and
- where the material draws the attention of the public in a manner calculated to promote the product or service.
Where it applies, the Code sets forth self-regulatory rules around portrayal of people, violence, treatment of sex, sexuality and nudity, appropriate language, health, safety and distinguishability in advertising.
The content the subject of the complaint
The Case Report noted that in the case of the abovementioned complaint, the account that uploaded the content demonstrating use of the brand’s gambling platform:
- included an affiliate link for the brand in their account bio; and
- that the Panel considered that the brand had control over providing affiliate links to users, and that it was a form of promotion.
The issue with distinguishability was that the Panel considered that whilst the content featured brief images of the brand’s logo, the brand was not tagged in the posts and there was no indication in the caption uploaded with the the content that would clearly indicate that the content was advertising material.
Does making an affiliate code available provide a brand with control over the resulting content?
The Panel noted in this case that they considered that the presence of an affiliate code was sufficient to meet the criteria of the brand having a reasonable degree of control over the advertising content.
What does this mean for brands with affiliate programs?
Brands with affiliate programs should ensure that their terms and conditions for their affiliate programs contain terms dealing with content created and uploaded to social media or other public channels by affiliates which may advertise the brand.
Depending on the brands and their products and services sold, the terms should set out any advertising restrictions and require that the affiliate clearly disclose the content advertising their brand as advertising material for the brand.
Does using third party affiliate programs change the position on the brand’s control over the creator content such that the Code of Ethics would no longer apply?
The Ad Standards Community Panel have previously considered other complaints in relation to breaches of the same section of the Code of Ethics when brands have used third party affiliate programs who then contract with influencers rather than the brand contracting with them directly.
In doing so, the Panel has noted in one case that in order for the third-party affiliate company to be able to provide links and commissions to influencers, the brand would have needed to authorise the arrangement and that the motivation for doing so would have been for the purposes of promoting the brand. The Community Panel considered that the brand did therefore have a reasonable degree of control over the material posted by influencers using the affiliate links in that case.
Accordingly, using third party affiliate programs will not prevent application of the Code, and brands should ensure that they have suitable terms in agreements with third party platforms to reflect this position.
Consequences of failing to disclose influencer advertising
In Australia, a failure to disclose influencer advertising breaches several self-regulatory codes, such as the AANA Code of Ethics and the AiMCO Influencer Marketing Code of Practice. Whilst no financial penalties flow from these breaches, reputational damage can often occur for failure to comply with Australia’s self-regulatory framework.
A failure to disclose influencer advertising can also breach the Australian Consumer Law, and depending on the product or service being advertised, several other laws in Australia. Significant financial penalties may be imposed for breaching these laws.
A breach of the branded content policies on the relevant platforms can result in the removal of content from the platform and disabled accounts.
Before launching your affiliate program or when conducting any review of it, schedule your free initial discovery consultation to see how we can help you.
Information contained within this blog post is intended to be general information only and is not in any way intended to constitute legal advice. You should not act or rely on any information found in this blog post without obtaining prior advice specific to your circumstances.
