Influencer Marketing in Australia has become a tool of choice when it comes to advertising and marketing strategy. Brands of all sizes are now turning to it to help them grow a loyal customer base and increase their sales.
Because it can be inexpensive (in some cases only costing an advertiser some free product) and quick to arrange, it can be easy to overlook some of the important legal considerations. In many smaller campaigns, a legal contract is also rarely properly negotiated and signed.
Regulation of Influencer Marketing in Australia
In Australia, self-regulation of advertising and marketing communications continues to be regarded by Government and stakeholders as the preferred model. The Australian Association of National Advertisers (AANA) implements a self-regulatory affairs program and is the first point of contact for advice on marketing and communication queries.
The AANA has adopted a Code of Ethics, which are platform and media neutral and apply to all advertisers and marketers who promote brands, products or services to Australian audiences.
Particularly relevant to influencer marketing campaigns is section 2.7 of the Code, which requires advertising and marking communication to be clearly distinguishable as such to the relevant audience. This provision was inserted into the Code with effect from 1 March 2017.
When someone suspects a breach of the Code, they may make a complaint to Ad Standards, who will then investigate the complaint. If the complaint is upheld and the advertiser fails to remove or amend the offending communication, Ad Standards will:
- include their failure to respond in their case report;
- forward the case report to media proprietors;
- post the case report on Ad Standards’ website; and
- if appropriate, refer the case report to the appropriate Government agency.
When do the AANA Codes apply?
For the AANA Codes to apply, the social media post in question must fall within the definition of advertising and marketing communication. Essentially, the advertiser must have a reasonable degree of control over the content in the post, and the content must be calculated to promote a product or a service.
Labelling the content
Best Practice Guidelines by the AANA confirm that where it is clear to the relevant audience (i.e. the followers of an account and other social media users) that certain content is commercial in nature, no further disclosure may be required. Some points to consider when determining this include, the nature of the content, where it is placed, how the audience are directed to it, the images and copy used as well as use of brand names and logos.
Does payment need to be made for the AANA Codes to apply?
In short, no. The AANA Codes apply equally where other arrangements have been made instead of direct payment, for example, a brand providing an influencer with free product or services.
Case examples
Two examples of cases where section 2.7 of the AANA Code of Ethics has been considered in the context of Influencer Marketing in Australia. Complaints have been made about advertisers where it was claimed that they had breached section 2.7 of the AANA Code of Ethics.
Eco Tan & Kat Risteska
One case involved Eco Tan and Kat Risteska in relation to a post on Kat’s Instagram page with an image of her using Eco Tan’s Coconut Body Milk and a caption containing her thoughts on the product. In the relevant post, Kat had tagged @ecotan and included #ecotan, amongst other hashtags. Eco Tan subsequently shared the post on its Instagram page. Someone complained that the post failed to state that it was an ad.
Of significance in this determination was the view that sending an Influencer free products and requesting that the Influencer write a review about the products did result in the post meeting the criteria of advertising and marketing communications. This was the case regardless of the fact that Eco Tan stated that they had no control over what was posted, how it was posted or whether it was posted at all.
In this case:
- the fact that the post read as though it were a press release; and
- the use of hashtags such as #ecotan and tagging Eco Tan’s own social media account in the post;
This resulted in a determination that the Instagram advertisement was clearly distinguishable as advertising material and therefore that it did not breach section 2.7 of the AANA Code of Ethics.
Mercedes-Benz Aus/Pacific & Pip Edwards
Another case involved Mercedes-Benz Aust/Pacific P/L and Pip Edwards regarding an Instagram post by Pip Edwards on 30 March 2018, which featured a Mercedes-Benz motor vehicle and a tag for @mercedesbenzau. Someone complained that the post was clearly an ad and that Pip’s Instagram feed did not display which posts were ads.
In this case, there was a formal agreement in place in relation to Pip Edwards creating and posting social media content for Mercedes-Benz over a set period. Again this was a situation where the post in question was created and posted with no specific creative input from Mercedes-Benz, other than the fact that they had an agreement in place and that Mercedes-Benz had provided Pip Edwards with a car for the Easter long weekend.
In this case, the posting of content featuring a Mercedes-Benz vehicle and tagging Mercedes-Benz in the post caption did appear to be content promoting Mercedes-Benz motor vehicles. The Panel found that even if Mercedes-Benz did not approve each individual post by Pip Edwards, it had an agreement with her to create the content and the ability to request that the posts be removed, which constituted a reasonable degree of control over the content.
It was determined that due to a series of posts made by Pip Edwards, the audience would be aware of the commercial arrangement that existed between her and Mercedes-Benz and that the post in question was therefore clearly distinguishable as advertising material and that it too did not breach section 2.7 of the AANA Code of Ethics.
Risks of failing to disclose Influencer Marketing in Australia and making false claims
In addition to complaints for breaches of the AANA Code of Ethics, it’s important to also note that promoting a product or service without disclosing to the consumer that it is a paid sponsorship can breach provisions of the Australian Consumer Law. The Australian Competition and Consumer Commission have a broad range of enforcement powers, including, amongst other things, the power to require that any claims on social media pages be substantiated and the power to commence court proceedings where a breach of the law has been identified. Third parties may also bring claims for damages where they have suffered a loss due to misleading or deceptive conduct.
Use of #spon or #ad
Whilst neither of the two cases discussed above used #spon or #ad type disclosures in their post, and both were still found not to breach section 2.7 of the AANA Code of Ethics, disclosing the commercial relationship in this way may reduce your risk of a claim for misleading or deceptive conduct under the Australian Consumer Law.
What constitutes adequate disclosure should be assessed on a case by case basis, taking into consideration the specifics of the campaign and the audience to which it will be broadcast.
Best practice for Influencer Marketing in Australia to avoid issues
In order to avoid complaints about Influencer Marketing in Australia and to stay on the right side of the law, you should:
- Be transparent and ensure that disclosure of sponsored posts are clear and easy to understand. Don’t just rely on blanket disclosure as individual pieces of content may be viewed in isolation.
- Ensure that the disclosure for a sponsored post is placed where viewers can easily see it (for example, before the hashtag list or at the start of a video). Don’t bury it in the middle of the hashtags or at the end of the list.
- Ensure that the disclosure of a sponsored post is in context when mentioning the brand.
- Have an Influencers Agreement that sets out obligations of disclosure and ensure that they are enforced.
- Of course, never make, or request that another party makes, false or misleading claims. You should never claim that a product works if it does not and never write, or request that another person writes, a personal review of a product which has not been personally experienced.
If you have questions or would like to have an Influencer Agreement prepared, this is our speciality.
