We were promised a crackdown on ‘deceptive' influencer advertising. The ACCC has yet to deliver

Sydney Morning Herald

17-06-2025

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'It's one of the most litigated sections in Australian legislation because it's so flexible and has such a wide scope,' Selvadurai says, noting how, because of the type and volume of evidence required plus the lack of terminology specific to influencer marketing, it's 'a little bit harder' to use in those cases. Not to mention, other agencies such as the Therapeutic Goods Administration (TGA) having their own specific advertising codes potentially widens what the ACCC needs to consider.
When it comes to clear disclosure rules on social media, local experts say the ACCC could take a leaf out of the US Federal Trade Commission's book. As Selvadurai notes, it 'mandates disclosure of all material connections' between endorsers and brands, with connections including payment of money or gifts, receiving free products or services, discounts, commissions, affiliate links or having a personal, employment or family relationship.
The UK, Sweden and Norway also have strict transparency rules, with the latter also mandating disclosure of edited images, including body alterations, in influencer advertisements. Ironically, that can spark confusion for followers who are consuming content – and products recommended – from Australia's comparatively lax digital marketplace.
'I think most Australian influencers have a pretty sizable international audience, so they're not just seeing Australian content next to Australian content,' says Dr Michelle Wong, PhD chemist, author of The Science of Beauty, and Lab Muffin Beauty Science content creator.
'They're seeing [Australian] sponsored posts next to sponsored posts from the UK and the US, where there are more clear disclosure requirements. And so, even if it's technically not required in Australia, it does make you look [suspicious] compared to people in the UK and US because that's what they're used to.'
So Sydney superstars Indy Clinton and Rachael Wilde learnt when the recent launch of Bouf Haircare drew disclosure-related backlash from oceans away, which, thanks to the nature of algorithms, only intensified the more social media users from across the globe scrolled.
The art of the equity deal
Questions surrounding the science of Bouf Haircare's 'patented, clinically-proven hair growth tech' and criticism over its use of wigs and hair extensions in creative campaign imagery were heightened by confusion over the relationship between Wilde, the entrepreneur who founded TBH Skincare and turned it into a multimillion-dollar jewel in Australian beauty empire York Street Brands' crown, and popular influencer Clinton, who was named TikTok Creator of the Year in 2023.
Namely, why was Clinton eschewing the usual voluntary paid partnership disclosures on her branded Instagram and TikTok content when Bouf Haircare had clearly stated she was an ambassador? Was Clinton, who was telling her legion of almost 2.8 million followers about 'my launch event', working for Bouf Haircare for free? Technically, yes.
'There's no active contract in place right now… it isn't a nature of a paid partnership, but we have made it very clear publicly that she is an ambassador of the brand,' Wilde told this masthead in the days following Bouf Haircare's May 27 launch, noting their initial traditional paid partnership agreement was voided two months prior.
'As soon as we have a new agreement and everything is negotiated we will update everyone with the exciting progress which has been going on behind the scenes,' Clinton said in a statement supplied through a representative shortly after.
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It's understood Clinton, who has since edited two Instagram posts to say 'Ambassador for now' in the caption, was in the process of negotiating an equity agreement – an unorthodox partnership popularised by American influencer Alix Earle, who provides promotional services in exchange for stakes in brands – with Bouf Haircare that had not been finalised at launch.
What do industry bodies have to say about it? Everything and nothing all at once
'Influencers that do not disclose the existence of a commercial relationship are at risk of contravening [Australian Consumer Law] and misleading consumers,' a spokesperson for the ACCC, which does not comment on individual cases, told this masthead.
Meanwhile, a spokesperson for AiMCO, which also does not comment on individual cases, told this masthead of its voluntary best practice guidelines: 'Even if there is no payment or written contract, the provision of value or reasonable control, such as gifting or event participation, can trigger the need for clear disclosure, particularly when the content appears promotional.'
In 2021, Australian influencer Sarah Stevenson, better known as Sarah's Day, was cleared by Ad Standards for sharing an Instagram post, sans advertising disclaimers, about a product she had released under a commercial agreement with La'Bang Body.
An investigation found Stevenson did not breach its voluntary code as the product, which had Stevenson's name in the title and was referred to by Stevenson as 'my natural deodorant' in the caption, was clearly being advertised in the post.
Why does this matter?
'Bias is a very real thing,' says Wong, who has a lengthy disclosure policy on her website of advertising disclosures in general, though she is not legally obliged to do so.
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'Even if someone thinks they're being completely unbiased… if someone is paying you for your opinion, if someone has been really nice to you, that's going to impact how you feel about a brand or a product… I would personally feel really bad if people got hurt after trying a product I've recommended.'
A spokesperson for the ACCC confirmed to this masthead it anticipated 'releasing before the end of 2025 information to help businesses engaged in influencer marketing to comply with [Australian Consumer Law].' Its compliance and enforcement priorities for the next year, commencing July 1, include 'misleading or deceptive advertising within influencer marketing'.
Selvadurai, meanwhile, highlights how guidelines are not legally binding like legislation, though they can be used as evidence in legal proceedings. But that comes only after the costly exercise of monitoring every post shared by Australia's 20.9 million active social media users.