Guide 5 of 5 · A paid promoter
Working with influencers: the arrangement behind the post
When a business offers an influencer incentives to post about it, the ACCC says the same rules that apply to all advertising and promotions apply to those posts. The business’s part is the arrangement behind each post: the brief, the payment, and what the contract says about the content.
General information, not legal or tax advice. The official places to check are the ACCC for advertising, the ATO for tax and super, and the Fair Work Ombudsman for workplace law.
The posts the ACCC counts
The ACCC’s page on social media promotions lists where the general advertising rules reach. Its list includes a business’s own posts, posts it pays for, and “social media posts that a business offers incentives to influencers to make.” Its example of what goes wrong: a hotel chain pays an influencer to tweet that she loved a resort she has never visited, a post the ACCC says “is likely to be false, misleading or deceptive.”
What the ACCC’s 2023 sweep found
In early 2023 the ACCC swept influencer advertising on social media, and found the most common issue was influencers not disclosing brand relationships in their posts. Its release of 7 December 2023 made clear that the law reaches past the influencer: “Influencers and brands may break the law if they do not take reasonable steps to ensure consumers are not misled to believe that sponsored posts are genuine.” That same release said the ACCC would release guidance for influencers and businesses in early 2024.
Briefs and scripts
The same release set out what businesses should do. Two of its points are about the brief a business hands over:
- “Ensure influencers are aware of their Australian Consumer Law obligations when promoting their products or services.”
- “Be careful when providing influencers with scripts to follow when making posts. Scripts should never require influencers to misrepresent their experience or views on a product.”
For the influencer’s side, the ACCC reminded them to disclose a promotional post clearly, in a way that is immediately obvious to consumers, including where they received free products, tickets or other gifts or incentives. It also pointed to industry codes, among them the Code of Ethics of the Australian Association of National Advertisers, which “requires that advertising is clearly distinguishable as such.”
When super can apply to a paid promoter
An influencer engaged on contract can still come within the ATO’s super rules. Its list of contractors who may be employees for super purposes includes a worker who:
“is a sportsperson, artist or entertainer paid to perform, present or participate in any music, play, dance, entertainment, sport, display or promotional activity, or similar activity”
ATO, on contractors who may be employees for super purposes
The same list covers a contract that is wholly or principally for the worker’s labour. When the contract is with a company, trust or partnership, the ATO says no super is payable for the person they employ to do the work. Whether one influencer deal falls in the list is for the ATO’s guidance or a tax adviser; the super guide sets out the labour test and Payday Super.
Who owns the content
An influencer working as a contractor starts with the copyright in what they create unless the contract says the hiring business will own it. A transfer of copyright has no effect unless it is in writing and signed by the person handing it over. Video can differ, because the Copyright Act has a separate rule for films made under a paid agreement; the ownership guide sets out both.
Other regulators in some industries
The ACCC is not the only regulator watching. Its release notes that ASIC, the Therapeutic Goods Administration and the national regulator of health practitioners also regulate influencer conduct in their own areas. An influencer post in those areas can fall under their rules as well as the consumer law.