Australia’s consumer watchdog is embarking on a dob-in-an-influencer campaign targeting social media stars who fail to declare their posts as advertisements.
This week the Australian Competition and Consumer Commission (ACCC) put out a call on social media, asking the public to send in examples of influencers who appeared to be promoting a brand or product online without disclosing it was an ad.
An ACCC spokesperson said the regulator “will be conducting a proactive sweep of social media influencer platforms to identify posts that contain potentially misleading reviews or testimonials”.
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Influencers who are in breach of the Australian Consumer Law can face penalties of up to $2.5m.
They are also subject to a voluntary code of ethics set out by the Australian Association of National Advertisers (AANA). The code – which doesn’t carry a penalty for breaches – states that when influencers accept payments or free products or services from a brand in exchange for a promotion, it must be “clear, obvious and upfront” to the audience that it is an ad.
Ad Standards, an independent body which exists to enforce the code, has made close to 40 findings against brands over breaches in influencer posts, including by brands such as Adidas, McDonald’s, Coles, Mercedes-Benz, Cygnett, and Prada.
The rulings, however, suggest there is sometimes a discrepancy between what brands pay for, and what influencers end up posting.
In many cases, the brand argued the influencer had been given a product without expectation of any posts, or had put up additional posts beyond what had been commissioned and paid for.
In one case, for example, Coles entered into an agreement with an Instagram influencer to post their Harry Potter-related products. The influencer then posted her trip to Coles the same day the Harry Potter posts went up.
The Harry Potter posts were labelled as advertising, but the Coles trip was not.
Coles argued it did not commission the later posts.
Sydney-based comedian and podcast host Mitchell Coombs said when he agrees to promote products to his 260,000 TikTok followers and 67,600 Instagram followers, he’s a “stickler” to ensure the paid partnership is disclosed – and he doesn’t accept promotions for things he doesn’t like.
He said when he brings up the paid partnership disclosure with some brands, he has found some were completely unaware about the need to disclose the payment.
“I think ‘Jesus, like, if you don’t know this, then how many people that you’ve worked with aren’t like me, and they’re just not doing everything quite correctly?’
“It’s pretty standard practice to disclose it. And I know that most people do.”
He says lack of education for both brands and and influencers could be behind people failing to disclosure payments.
“I only know all of the right and wrong things to do because I had to find out on my own,” he said. “No one sat down and talked me through that.”
Josanne Ryan, the chief executive of the Australian Influencer Marketers Council (AiMCO), the industry body for influencer marketers, told Guardian Australia that the ACCC’s push was a sign of the industry maturing.
“We know most of the industry are aware of their obligations under the [Australian Consumer Law] and other regulatory frameworks, and are doing the right thing, but of course there’ll be some that don’t, especially new entrants,” she said. “AiMCO continues to work with our members and to help educate and support agencies, brands and creators to adopt transparent, consistent industry best practice.”
The ACCC is considering whether more regulation is needed over influencer advertising, and will report to the government in March as part of the long-running digital platforms inquiry.
In a submission to that inquiry in October last year, Ad Standards argued the complaints system in place was working effectively, at no cost to government or consumers.
The commission is also working with other regulators including the Australian Securities and Investments Commission, the Therapeutic Goods Administration and the Australian Health Practitioners Regulation Authority about the regulatory roles in influencer content.
