Australia imposes new rules on sponsored content

James Purtill, ABC Online


It means that, for the first time in Australia, you will have a pretty good idea whether the post in your Instagram feed has been paid for by a brand. The new code by the Australian Association of National Advertisers (AANA) covers all social media platforms, and any kind of social media user.


Breaking the AANA code won't mean a huge penalty - the association is self-regulating and following the rules is voluntary. The rules only apply to the brands themselves. The Advertising Standards Board can ask for the ad to be taken down.


The real danger is prosecution by the Australian Competition and Consumer Commission (ACCC) for breach of Australian Consumer Law (ACL). That hasn't happened yet in Australia - there have been no legal cases against social media influencers. But it could. Brands are increasingly turning to influencers to promote their products, and this has led to young people becoming their own ad agencies.


Few of these social influencers are across ACL. Breaching the ACL carries a maximum fine of $220,000 per post for an influencer, and $1.1m for a brand.


The AANA rules are a guide to staying out of trouble. Here's what you need to know.


What is sponsored content?


It's usually pretty clear what is sponsored content - a brand pays an influencer to wear their dress or spruik a hotel. The grey area is around scenarios where the brand just gives the influencer the dress and they then endorse it on social media.


The guidelines set out two criteria:


Does the marketer have a reasonable degree of control over the material; and

Does the material draw the attention of the public in a manner calculated to promote a product or service.

The key word here is "control". If a brand doesn't tell you what you have to say, there's probably no control. Lawyer Stephen Von Muenster, a leading authority on consumer law, told Hack there may be some "implied control" when the brand advises about "key messages" or gives the influencer more product than they should - for example, a year's supply of makeup rather than a sample.


"There's shades of grey and no easy answer," he said.


Sarah Harrison, who has the 12,500 followers on her @littlemissmelbourne Instagram account, and sometimes does paid content, said her rule of thumb was "whether the content you've created ... has the potential to mislead."


"We need to be mindful and avoid creating a misleading and false impression, and we really have that duty of care for ourselves and our audience."


"It's about being real, and being true, and being authentic."


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