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Influencer marketing is becoming increasingly popular amongst businesses, as it provides a fresh way to boost brand awareness and customer loyalty. Accordingly, it is crucial that businesses understand the complex legal framework surrounding influencer marketing to prevent them from breaching the law. This article will outline the key legal issues in influencer marketing to ensure that your business is legally compliant!

1. Misleading and deceptive Influencer Advertising

A key consideration in influencer marketing is misleading and deceptive advertising. Businesses must ensure they are complying with the Australian Consumer Law (ACL) in their influencer marketing strategy. Specifically, the ACL prohibits conduct which misleads or deceives other people, regardless of the intention behind the conduct. As such, businesses must ensure that the influencers they have engaged are transparent with their audience about the commercial nature of their actions and posts. For example, if an influencer is not upfront that they have been paid to advertise a particular product or service, they may be liable for misleading and deceptive conduct under the Australian Consumer Law.

2. Disclosure of Influencer Advertising

The best way to avoid misleading and deceptive advertising is to ensure that your influencers are disclosing relevant commercial relationships in their posts. The AANA Code of Ethics, which applies to advertisers who promote their products, brands or services to Australian audiences, requires clear disclosure of sponsored posts by influencers. This must be done in a way which is easily understood, such as through a direct hashtag. Examples of hashtags which clearly disclose a paid partnership include:

• #Ad
• #BrandedContent
• #PaidPromotion
• #PaidPartnership

Hashtags which may not be sufficient disclosure include #Gift or #Collaboration. Businesses and influencers should try to be as upfront as possible in disclosing paid partnerships to avoid legal consequences under the Australian Consumer Law.

 3. Influencer agreements

An influencer agreement is a legally binding contract which sets out the rights and obligations between an influencer and an organisation. Businesses should ensure that their influencer contracts are properly constructed and reviewed for any unfair terms to avoid legal consequences. Key terms within an Influencer Agreement may include:

• Obligations of influencer and specific content to be created
• Basis of renumeration
• Intellectual property clauses
• Timing of posts and duration of partnership
• Liability clauses detailing where possible losses may fall
• Consequences for failing to comply with agreement

4. Intellectual property

Businesses should also consider their intellectual property rights when utilising influencer marketing. Your influencer agreement should clearly set out who retains the intellectual property rights to the content created by the influencer, and whether these rights are assigned back to your business. Further intellectual property considerations may include how the influencer uses aspects of your brand in their content, such as a logo or design.

Key takeaways

• Influencer marketing is a great way for businesses to boost brand awareness and customer loyalty. However, businesses should be aware of the legal framework surrounding influencer marketing to avoid serious consequences.
• Businesses should ensure that the influencers they engage are not engaging in misleading or deceptive advertising. The best way to do this is through full disclosure of the paid partnership.
• Businesses should have properly constructed Influencer Agreements which clearly set out the rights and obligations of each party under the agreement.
• In engaging influencer marketing, businesses should ensure their intellectual property rights are protected.

Gladwin Legal are experts in compliance and consumer law. If you require assistance in drafting influencer agreements, reviewing contracts or protecting your intellectual property, please contact us at or 1300 033 934.