Australia: No such thing as a free post: ASB rules that Instagram post by influencer is advertising

Last Updated: 15 September 2017
Article by Dan Pearce and Emily Booth
Most Read Contributor in Australia, August 2017

When does an influencer's post become an 'advertisement'? A recent decision by the Advertising Standards Board (ASB) puts social media advertising in the spotlight but may not provide any easy answers.

The facts of this ASB determination present a no doubt common scenario in the increasingly influential world of social media influencers. A celebrity, Kat Risteska (14.5k followers on Instagram), received free product from Eco Tan Pty Ltd, the manufacturers of a coconut body moisturiser. Eco Tan alleges that whilst they asked her to write a review, they had no control over what she posted or if she posted at all.

Risteska's resulting post showed a picture of her with the product, tagged with Eco Tan's social media handles @ecotan and #ecotan and according to the ASB reads as if taken from an Eco Tan press release. Eco Tan subsequently shared the post to its own social media channels.

A complaint was made to the ASB under a new provision of the Advertiser Code of Ethics (the Code) which says that "Advertising or Marketing Communications shall be clearly distinguishable as such to the relevant audience".

Does money need to exchange hands for a post to be an advertisement?

The answer is no and this is what the ASB determined in this instance.

In our view this makes sense, but there is a difference between being handed a free soft drink sample at a train station and taking to social media to express your delight, and a company singling you out as an individual with 14,000 Insta followers, sending you free product and you then posting about it. Clearer still is where an influencer reaches an agreement with the company that, in exchange for free product (instead of monetary compensation), they will produce content.

Does there need to be an obligation to post or what to post?

In this case, the ASB found the absence of any (for example, legal) obligation was not determinative. The ASB considered the post was an advertisement or marketing communication for the purposes of the Code.

The Best Practice Guideline on Clearly Distinguishable Advertising published by the Australian Association of National Advertisers says that where celebrities are sent unsolicited free product with no stipulation as to whether the person might post content and there is no control over any statements, any resulting material is unlikely to be considered advertising or marketing communication.

However, in this case the ASB's view was that the sending of free product (a form of payment) amounts to a business transaction, and requesting a review means the advertiser 'does have an element of control', especially given it re-posted the material on its own social media account.

It would be good to know whether the act of re-posting was the determinative factor for the ASB, as the idea that Eco Tan had 'control' before this point is puzzling. If a brand is deemed to 'control' any post that it prompts by sending an influencer free product, this would seem to imply that the brand could be on the hook for anything in an influencer's post (for example, other Code breaches or breaches of consumer law, privacy, defamation). Arguably, the act of sending free product creates some sort of obligation for the influencer to post (and potentially post something positive), but is there really 'control' in these circumstances?

Was the advertisement sufficiently identified as such?

The ASB noted that the wording of the post was "as though from a press release" and noted the use of the Eco Tan social media handles. The ASB considered therefore, that users would be aware this was a sponsored post, even in the absence of using identifying hashtags such as #spon or #ad for example. Indeed, the issue of the complaint was that Risteska's post did not contain these identifiers.

Use of such identifiers is not necessarily determinative, as there are other ways that the post itself can make such a fact obvious, to use an extreme example, "I was treated to a free night at this resort by the owners in exchange for my thoughts and..." or "Thanks for the gift [brand]". However, it seems a stretch to say that because the wording sounded 'like a press release' and contained hashtags, it was sufficiently identified as being sponsored.

The end result for Eco Tan was that the ASB found that it had not breached the Code because the post was sufficiently identified as an 'advertisement'.

Takeaways

Not sufficiently disclosing an advertisement as such can not only be a breach of the ASB Code but can also constitute misleading and deceptive conduct under Australian Consumer Law. If the notion of 'control' by the brand is taken to arise even when it doesn't re-post itself or where the influencer has no actual legal obligation to post material, potentially the brand may be liable if the posted materials breach other laws. Therefore businesses who have a reputation to protect need to be equally careful about how they go about their social media marketing strategies.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Dan Pearce
Emily Booth
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.