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The overarching piece of legislation governing advertising in Australia is the Australian Consumer Law which is enforced by the Australian Competition and Consumer Commission (“ACCC”). Section 18 of the Australian Consumer Law states that a person or business must not, in the course of trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive.
Advertising in Australia is also self-regulated under various advertising codes. The key code is the Code of Ethics of the Australian Association of National Advertisers (“AANA”) which is the main national body for advertisers.
In October 2018, AANA published an Industry Practice Note addressed to “marketers, their agencies and the community to help them understand what steps should be taken to ensure advertising and marketing communication is clearly distinguishable”.
The Industry Practice Note explains that the Code of Ethics requires advertising and marketing communications to be clearly distinguishable to the relevant audience: it is an advertisement, it should be clear it is an advertisement.
According to the Industry Practice Note, content will fall within the definition of advertising and marketing communication if the advertiser “has a reasonable degree of control” over the content and that content is “intended to promote a product or service”. Payment is not required for material to be considered advertising or marketing and the Industry Practice Note describes other arrangements which may have been made in place of direct payment (such as the provision by the brand of a free product). Where a vlogger or blogger is acting independently, then their material will be considered editorial and not advertising.
The Industry Practice Code provides a considerable number of tips and examples on how influencer posts should be clearly labelled as advertising. The tips include a checklist of “Do’s” (such as being transparent and ensuring the viewer can see the disclosure) and “Don’t’s” (such as “don’t bury disclosures in a hashtag list, or put it at the end of a long list”).
The onus on complying with the Code of Ethics is on the advertiser where they have a “reasonable degree of control” over the content. However, agencies, influencers, PR teams and platforms should all be mindful of the responsibility of the role they need to play to ensure advertising is clearly distinguishable.
The ACCC may take action against those in breach of section 18 of the Australian Consumer Law although an individual or business can bring a claim under it. Remedies can include injunctions, damages and compensatory orders. However, there are no civil penalties or criminal sanctions for breach of section 18.
The Advertising Standards Bureau hears complaints about advertisements in breach of the Code of Ethics. Where a complaint is upheld, the advertiser is requested to remove or amend the offending advertisement.
Link to the Industry Practice Note: