In a first for Australia, social media influencers must now abide by an Influencer Marketing Code of Practice.
The move this month follows the lead of America and the United Kingdom, where influencers have been legally required to disclose their advertising partnerships by using #ad or #Sponsored since September 2017.
Released on July 1 by the newly formed Australian Influencer Marketing Council (AIMCO), the Australian Influencer Marketing Code of Practice aims to build greater transparency and trust for the industry.
MBA Lawyers social media law expert Matt Windle said that for the industry to mature, transparency and guidelines for which brands and influencers enter into contracts, whether written or verbal, was pivotal.
“Disclosure is important because advertising must be in line with Australian Consumer Law, which states that you must not engage in conduct that is likely to mislead or deceive,” he said.
“As an industry that is growing both nationally and globally it is great to see some firm guidelines for its ongoing use, which will hold all parties accountable.”
The Australian Influencer Marketing Code of Practice clearly articulates the areas of responsibility and proposed requirements for all involved in the influencer marketing landscape. It also includes guidelines on influencer vetting, advertising disclosure, and contractual considerations including content rights usage and reporting metrics.
The Code was developed in line with the need for the industry to consistently address the legal requirements relating to advertising under Australian Consumer Law (ACL) and its enforcement through the Australian Competition and Consumer Commission (ACCC).
Here we break down the new Code of Practice and what it means for you.
Who does the Code of Practice apply to?
Anyone working in the Australian Influencer Marketing sector, including:
- Talent representatives and managers
- Industry marketplaces that provide platforms and promote influencers
- Media and Public Relations agencies
- Advertisers engaging industry participants for influencer marketing
- Platforms and all other providers of service to the influencer marketing community
When is advertising disclosure required?
Advertising disclosure is required when there is a contracted agreement. This includes verbal recording, email documentation, digital or other documents. It includes:
- Any transaction with financial payment; as well
- Value in kind
- Free products
- This also applies to any affiliate marketing engagements
I’m an influencer, what do I need to do?
The required minimum disclosure is to use #Ad or #Sponsored. However, the following additional hashtags could be used in addition to, and not instead of, the minimum disclosure:
- Client requested # such as #brandname, #campaign
For short-videos, Brand associations should be declared through the use of ‘screen supers’ at the beginning of the video or in the post captions. However for long-form videos the brand associations must be declared within the first 3-0 seconds, both verbally and visually.
When advertising disclosure is not required
The only time advertising disclosure is not required is when there is no contracted engagement, or the brand has no input or ‘control’ over the influencer content or outcome. Even though disclosure may not be required it is best practice to include reasonable disclosure in the content by using #FreeGift.
In 2017 The Advertising Standards Authority found that online makeup Instagram blogger Sheikbeauty had breached the advertisement code because it was not clear her post was an advertisement. Her post promoted Flat Tummy Tea.
Just this year, four complaints about Instagram posts by New Zealand weight loss journey influencer Simone Anderson were upheld by the Advertising Standards Authority. The complains related to the way Anderson, who has 313,000 followers in Instagram, posted content that was advertising but not clearly labelled.
Both influencers were issued large fines.
If you’re an influencer or brand entering into a social media advertising agreement contact our social media law expert Matt Windle for further advice on your situation on firstname.lastname@example.org.