Blog

Handing a giveaway over to an influencer to run on your behalf feels like it should simplify things — they know their audience, they handle the posting, and the entries roll in.  But from a legal standpoint, your business is still the promoter, and the obligations under trade promotion law and the Australian Consumer Law don’t shift just because someone else is holding the phone.

Who’s Actually the “Promoter”?

Under most state and territory trade promotion legislation, the promoter is the business whose products or services are being promoted and who ultimately benefits from — and is responsible for — the competition.  Even if an influencer is drafting the caption, choosing the winner, or announcing the result, the legal obligations (permits, terms, prize fulfilment) sit with your business unless the influencer is genuinely running the promotion for their own commercial benefit rather than yours — which is rare in a brand giveaway.

Is It a Game of Chance or a Game of Skill?

This is the threshold question, and it decides whether permits are in play at all.  A game of chance picks the winner at random — a draw from all valid entries, an entry pulled by a randomiser, a “first name out of the hat” post.  A game of skill picks the winner on merit, judged against criteria you publish in advance: the best caption, the most creative photo, the most persuasive answer in 25 words or less.

Skill-based promotions generally sit outside the permit regimes, but only where the judging is genuine.  Criteria you never actually apply, or a “winner” chosen because their comment happened to be first, can make the promotion a game of chance in substance whatever the terms say — and the permit obligations follow.

Influencer-run giveaways drift into chance territory easily, because “tag a friend and we’ll pick someone on Friday” is quicker to post than a judged brief.  Decide which model you are running before the influencer writes the caption, and make sure the published terms and the actual selection process match.

What Compliance Steps Still Apply?

Permits

If the promotion is a “game of chance” — winners drawn at random rather than judged on skill — a trade promotion permit may still be required, regardless of who’s posting it.  NSW, South Australia, the ACT and the Northern Territory have each operated permit regimes triggered once the prize pool exceeds a set threshold (thresholds and requirements change — confirm the current position in each jurisdiction before you rely on a figure), while Victoria, Queensland, WA and Tasmania don’t require a permit but impose their own conditions (Victoria, for example, caps the cost of entry at $1).  Industry-specific rules can also sit on top of the general permit regimes — LMCT promotions run by licensed motor car traders, for example, carry their own conditions on how the promotion is advertised and how prizes are described.  Getting the prize pool value, the promotion’s state reach, and any industry-specific requirements confirmed early avoids a last-minute scramble for a permit.

Full Terms and Conditions

A caption saying “tag a friend to win!” isn’t enough.  You still need published terms covering eligibility, the entry period, how the winner is selected and notified, and prize details — and they need to be genuinely accessible, not buried in a comment reply.

Platform Rules

Instagram and TikTok each impose their own promotion rules on top of Australian trade promotion law, and breaching them is a commercial risk rather than a regulatory one — the post comes down mid-competition and the entries go with it.

Instagram Giveaway Compliance in Australia

Meta’s promotion guidelines require the promoter to run the giveaway lawfully, to include an acknowledgement that the promotion is not sponsored, endorsed or administered by Instagram, and to accept sole responsibility for it.  Meta also prohibits inaccurate tagging — so “tag yourself in this photo to enter” mechanics are out, even though they are still commonly posted.

TikTok Competition Rules in Australia

TikTok’s branded content and community guidelines require paid partnerships to be disclosed using the platform’s own disclosure toggle, not just a caption hashtag, and restrict promotions that involve gambling-adjacent mechanics or that target users under 18.  Age-gating matters here: an influencer with a young audience can put an otherwise compliant promotion offside.

An influencer unfamiliar with these rules can inadvertently put the promotion in breach of platform terms, and neither platform is obliged to reinstate a removed post.  Confirm who is responsible for platform compliance in the agreement, and check the current guidelines before each campaign — both platforms revise them without notice.

Advertising Disclosure

Separately from trade promotion law, the ACCC and Ad Standards expect clear disclosure that a post is a paid partnership or gifted promotion — non-disclosure creates its own misleading conduct risk.

What Should Be in Your Agreement With the Influencer?

An email brief or a run of DMs won’t cover you.  A proper agreement should set out:

• Who is responsible for drafting and publishing the terms and conditions
• Who selects the winner, and how that decision is verified and recorded
• Who obtains any required state permits, and who bears that cost
• What happens if the influencer’s account is suspended, the post is removed, or engagement is manipulated (bot entries, purchased followers)
• Content and disclosure requirements consistent with Ad Standards guidance

What Happens If It Goes Wrong?

If a promotion is run without a required permit, or the terms are inadequate, the business — not the influencer — typically wears the regulatory risk and any consumer complaints.  A poorly run influencer promotion can also cause reputational damage disproportionate to its size, since disputes over winner selection tend to play out publicly, in the comments.

Before you brief an influencer on your next giveaway, it’s worth having the terms, permit requirements, and the influencer agreement itself checked.  Get in touch with Gladwin Legal to make sure your next promotion is set up properly from the start.

This article is general information only and does not constitute legal advice.