In today’s society, it is almost impossible to not hear or read about so called “influencers” and their role in promoting brands, products and ideas on social media.  In fact, many of these “influencers” have derived significant income in using social media platforms such as Instagram, TikTok, YouTube and Facebook by engaging/targeting audiences (or followers). However, with the rise of social media has also brought about regulation of what influencers must legally distinguish paid promotions from organic content. 

Influencers are therefore required to disclose when there is any commercial transaction including payment and receiving free services. This can be achieved by using clear and unambiguous language or by utilising hashtags, for example, #sponsored or #paidpartnership in a conspicuous position within the post or content (whether it be published in a story, video or live stream).  If they do not properly disclose, the consequences can be fatal.

The main object of the Australian Consumer Law is to obviously protect consumers.  However, if the influencer does not disclose the benefit (pecuniary or otherwise) that he or she is receiving, then they risk breaching Australia Consumer Law and could be liable for serious fines by engaging in misleading or deceptive conduct (Section 18 and Section 29 of the Australian Consumer Law).  It is also noteworthy that the Australian Association of Advertisers has issued advertising standards that could potentially be relevant and applicable to the influencer.  Also, in recent years the Australian Tax Office has also been active in pursuing influencers for failing to declare income. 

The bottom line is this – if you are deriving income from being influencer then you are subject to relevant laws and this is why it is important that before you post, think about whether you are lawfully required to disclose.  You must also be careful that your “influencing” is truthful and not deceptive as you could be liable for breaches of Australian Consumer Law and also subject to Defamation Laws.

Finally, it may also be worthwhile to seek detailed legal advice before you become “influential”!

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

Article Authorised by Roly O’Regan