Ad Standards upholds another complaint in relation to undisclosed influencer advertising
On 4 June 2025, the Ad Standards Community Panel upheld a complaint about influencer content breaching Section 2.7 of the AANA Code of Ethics, as they considered that it failed to be properly disclosed as advertising content for the brand.
Whilst the Community Panel found that “the advertiser sharing the post, being tagged and the post’s clear focus on the product and its benefits were sufficient to distinguish the post as advertising”, the influencer had added the words “not an ad” in the caption which the Community Panel considered “misleading and did not clearly disclose the relationship between the brand and the influencer”.
The Case Report also notes that the brand itself noted in its response to Ad Standards that “I can confirm that this was not a paid / sponsored piece of content” but then goes on to explain the context of the arrangement, which clearly details how in fact it would be classified as a sponsored piece of content under the AANA Code of Ethics, Practice Note and previous case examples.
The Case Report details that the relationship arose between the brand and the influencer when the brand invited a number of influencers and media to a launch event, provided each with a complimentary membership, but did not require anything in return. Following the event, the Case Report notes that the brand stated the influencer uploaded content using content she had created previously from using the brand’s app for a period of time prior to the launch event.
The Ad Standards Community Panel noted in the Case Report that “the advertiser has control over the decision to host the event and to offer the product for free”. This is in line with the Community Panel’s comments in relation to a previous complaint involving another PR event where they noted the following two important points about the arrangement:
- “it [the Panel] has consistently determined that the existence of a contract or formal engagement is not the only indicator of control or whether material is advertising, and the practice note clearly outlines the intent for the Code to also apply to material where there is no formal agreement in place, and that provision of free product can establish a relationship between an advertiser and influencer as if payment had been made”; and
- “while the advertiser had no direct contractual control over whether or not the influencer had chosen to post, and what they posted, the advertiser had had control over choosing to invite the influencer to the PR event, thereby creating opportunities which encouraged posting at the event. It could have provided instructions to or made requests of all invitees”.
When is influencer content considered advertising content for the brand?
The AANA Code of Ethics, Practice Note and previous case examples suggest that if a third party influencer is receiving some form of benefit, such as for example, a one-off payment, a commission on sales, free products or services, or free tickets to launch events, and in connection with that, or shortly thereafter, the influencer uploads content to their own social media account about the brand or its products or services in a way that may draw the attention of the public in a manner calculated to promote the brand’s product or service (whether or not uploading that content was an explicit requirement to receive the benefit or not) then the content uploaded will need to be distinguishable as advertising.
How should influencers disclose advertising content?
Whilst the AANA Practice Note states that “there is no absolute requirement that advertising or marketing communication must have a label however it must be clear to the audience”, best practice guidelines such as the AiMCO Influencer Marketing Code of Practice recommends use of the native brand partnership tools available on the relevant platform where available, and certain hashtags as set out in the Code of Practice where native partnership tools are not otherwise available.
It is important to also note that each social media platform where the content may be uploaded usually have their own branded content policies when it comes to use of labels. See for example, Instagram’s policy and guide and TikTok’s policy.
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.
The importance of seeking legal advice ahead of influencer campaigns
These cases highlight the importance of seeking legal advice before planning any promotional activity involving influencers to ensure that all parties involved know when ad disclosure may be required, and how to properly go about it. Seeking legal advice can assist parties with:
- Determining disclosures that may be required when influencer content is uploaded to social media;
- Disclosure guidance for inclusion in PR event invitations;
- Drafting of Influencer Agreements;
- Negotiation of commercial terms for Influencer Agreements;
- Content approvals before content goes live;
- Content audits after content has gone live; and
- Responding to any complaints made to Ad Standards if they arise.
When planning your next promotional activity involving influencers, 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.
