After years of warnings, online sweeps, reports of alleged non-compliance, and putting the industry on notice that new guidelines were coming, the ACCC confirmed it has issued two infringement notices to Tomsem Consolidated Pty Ltd trading as PhotobookShop (“PhotobookShop”) relating to non-disclosure of influencer advertising and editing of influencer reviews before publication.
In its media release issued on 24 March 2026, the ACCC said PhotobookShop paid $39,600 in penalties after being issued with the infringement notices. Whilst the payment of a penalty specified in an infringement notice is not an admission of a contravention of the Australian Consumer Law (“ACL”), the ACCC issues infringement notices when it has reasonable grounds to believe a person or business has contravened certain sections of the Australian Consumer Law, in this case, section 29(1)(f), which requires that:
A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation concerning: (i) a testimonial by any person; or (ii) a representation that purports to be such a testimonial; relating to goods or services
What was the alleged conduct?
The ACCC said the investigation commenced when an influencer made a report to the ACCC about an agreement proposed to them in relation to their creation of content for the brand’s use that included the statement “Note: Please ensure that your videos do not mention that the product is free, sponsored, or that PhotobookShop contacted you to create them in exchange for products.”
The ACCC alleges that between August 2024 and September 2025, PhotobookShop commissioned influencers to create reviews for social media, in which on 107 occasions, included an instruction to the influencer not to disclose the fact that the influencer had been incentivised to provide the review with free products provided to them by the brand.
The ACCC noted that an influencer had created such a review that failed to disclose the sponsored nature of the content in exchange for the free products, which was posted to social media by PhotobookShop.
The ACCC also identified an occasion where PhotobookShop allegedly made edits to an influencer’s review before posting the edited review to its Instagram account. The ACCC alleged that those edits changed the overall impression given by the influencer’s review and did not disclose the fact that substantial edits had been made to the review.
Why is this an important development in the influencer marketing industry?
Consumer and fair-trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy has been an ACCC compliance and enforcement priority since 2022 / 2023.
On 27 January 2023, the ACCC announced that it was intending to conduct a sweep of influencer posts to identify misleading testimonials and endorsements by social media influencers. The ACCC conducted its influencer sweep between 23 January 2023 and 3 February 2023.
In a report on the sweep, the ACCC identified that a total of 81% of the influencer posts they were monitoring were concerning and in need of follow-up action, particularly in relation to ad disclosure, as they considered that the influencers’ posts showed some signs that the posts may be advertising or that the influencers may have received incentives to promote brands, but they considered that this had not been properly disclosed in the posts.
The ACCC advised in its report that its sweep aimed to identify examples of ways in which influencer marketing industry participants (including influencers, advertisers and brands) may use social media advertising to mislead or deceive consumers, including by:
- making incorrect statements or creating a false or misleading impression about a product, service or brand;
- omitting key information in the post, such as commercial relationships, sponsorships or other incentives; and/or
- disclosing the advertising or sponsorships, but not clearly or prominently enough for the ordinary consumer to notice or pay attention to.
Despite the abovementioned sweep and report, as at 24 March 2026, the ACCC’s guidelines had still not yet been released, and there had been no reports of any brands, influencers or agencies receiving any penalties for any conduct in contravention of the ACL specifically in connection to the areas of concern raised in their report, until the ACCC confirmed on 24 March 2026 that it had issued the infringement notices to PhotobookShop.
This case marks the first time in Australia a brand has been fined for a failure to disclose sponsored influencer content since the rise of influencer marketing in Australia and the subsequent ACCC sweeps.
Important note on the penalties
Whilst the ACCC has elected to issue infringement notices in this particular case (which has provided them with a timely, cost-efficient enforcement outcome), for future cases, the ACCC may choose to commence proceedings in the Federal Court and ask the court to impose much larger pecuniary penalties where appropriate to do so.
These larger penalties can be up to the greater of the following:
- $50,000,000;
- if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—3 times the value of that benefit;
- if the court cannot determine the value of that benefit—30% of the body corporate’s adjusted turnover during the breach turnover period for the offence.
An offence by a person other than a body corporate is punishable on conviction by a fine of not more than $2,500,000.
The ACCC has confirmed that is less likely to consider issuing infringement notices where:
- the ACCC considers the concerns are more serious in nature and warrant consideration by the court;
- there has been significant detriment arising from the alleged conduct;
- the ACCC has concerns that the alleged conduct may be continuing;
- there are questions about whether the alleged conduct occurred within the 12–month period in which the ACCC may issue an infringement notice;
- the matter raises complex questions about the interpretation of a provision of the ACL, and
- the ACCC or another ACL regulator has previously taken action against the person involved in the alleged contravention—particularly where recent or very similar.
What to do next
Now is a good time to review your practices for influencer marketing campaigns. Schedule a free initial discovery consultation to see how we can help.
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.
