Paid posts, and saying so

Which posts are advertising

The ACCC’s page on social media promotions says social media is covered by the rules for all advertising and promotions, and its list names four kinds of post:

“a business’s posts on its own social media accounts; advertising on other social media platforms; social media posts that a business pays for; social media posts that a business offers incentives to influencers to make.”

ACCC, Social media promotions

business.gov.au explains the paid kind from the platform’s side: “Paid content is a type of advertising. You pay the platform to show your post to more users, including people who don’t follow you.” When a manager runs the business’s accounts, both kinds can pass through their hands: the boosted post on the business’s own page, and the post an influencer makes because the manager arranged a fee, a gift or a discount on the business’s behalf.

What the ACCC has said, in order

1. July 2021: the advertising and selling guide

   “There are no specific or different consumer laws in place for social media.” In the guide’s words, the rules against false, misleading or deceptive claims apply to social media as to any other marketing channel. The same guide says the law applies even if you did not intend to mislead anyone, and even if no one has lost anything.

2. 7 December 2023: the influencer sweep

   The ACCC reviewed 118 social media influencers and found that 81 per cent had posts raising concerns of potentially misleading advertising under the Australian Consumer Law. The most common issue was influencers not disclosing brand relationships in their posts. Another was vague or confusing labels, such as ‘sp’ and ‘spon’ instead of ‘sponsored’. The ACCC also said many influencers formatted posts to hide the disclosure or make it hard to notice.

   The release was clear about who the law reaches: “This applies to influencers engaging in trade or commerce, as well as brands and marketers using influencers to advertise online.” At the time it said it would release guidance on disclosing advertising in social media posts in early 2024.

3. The ACCC’s current page on social media promotions

   Its example: a hotel chain pays an influencer to post that she loved staying at one of its resorts, when she has never been there. The ACCC says the post “is likely to be false, misleading or deceptive.”

The industry has its own standard too. The ACCC notes that the Australian Association of National Advertisers’ Code of Ethics requires advertising to be clearly distinguishable as such, and that the Australian Influencer Marketing Council’s Code of Practice sets out good practice on disclosing advertisements.

Whose name is on a manager’s choice

The ACCC’s 2021 guide includes a real case about an agency working for a client. An advertising agency ran a search advertising account for a classified advertising business, and an agency staff member added a competitor magazine’s name as a keyword. A search for the competitor then showed a sponsored link with the competitor’s name above the client’s web address. The Federal Court found that the classified ads business, the client, made false or misleading claims and engaged in misleading or deceptive conduct.

That is the shape of this whole site in one case: the agency’s staff made the choice, and the finding was against the business whose ad it was.

The law itself

Section 18 of the Australian Consumer Law: “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Section 29 lists specific false or misleading representations, and the Act notes that a pecuniary penalty may be imposed for a contravention of that subsection.

Settling it with a manager

This guide does not set out the exact words a paid post should carry. The questions below are about process: who decides, and who checks. The ACCC’s concerns about vague labels and hidden disclosures point to the test, which is a label people notice and understand.

• Which posts the business is paying to promote, and who approves them before they run.
• Which influencers or creators the manager may offer money, gifts or discounts to, and on what terms.
• How every paid or rewarded post will be labelled, in plain words rather than abbreviations like ‘sp’ or ‘spon’.
• Who checks an influencer’s post after it goes up, and what happens if the label is missing.

The answers belong in the agreement. A rewarded review is a paid post of another kind, and has its own rules in the reviews a manager may not write.

The ACCC’s own suggestion, for a business unsure what it can and can’t say on social media, is to get legal advice. Written into the agreement, the four answers above give both the business and its manager the same picture of who signs off on what.