Clifford Chance

The Australian Competition and Consumer Commission (ACCC) is targeting misleading and deceptive influencer marketing in 2024-25.

Social media influencers are the target of one of the ACCC's recently announced compliance and enforcement priorities for the upcoming year (see our  briefing on ACCC's Compliance and Enforcement Priorities: What to Expect in 2024-25).

In announcing the priorities, the ACCC noted that influencer marketing has become a key to reaching and persuading consumers to choose products and brands and that some businesses are using influencer marketing to manipulate and influence consumer decisions.

Accordingly, the ACCC will be focusing on misleading or deceptive conduct in influencer marketing. This priority is a direct continuation of the ACCC's review on testimonials and endorsements by influencers, which was published in December 2023.

While the ACCC's report and enforcement priority primarily targets influencers who engage in misleading or deceptive conduct in contravention of the Australian Consumer Law (ACL), it is important to note that the ACL also imposes penalties on parties that are "involved in a contravention" and that a party can be "involved in a contravention" if they aid or abet or have been knowingly concerned in such contravention.

The ability for the ACCC to seek penalties from parties that aid or abet a contravention raises risks for the digital platforms hosting the influencer, as well as the brands which engage with influencers to advertise their products, and potentially exposes them to pecuniary penalties if influencers are found to have contravened the ACL.

Platforms involved in influencer contravention

In terms of a platform or brand being involved in such contraventions, the platform or brand must have intentionally participated in the contravention with actual knowledge of the matters that constitute the breach.

However, a combination of suspicious circumstances and a failure to make reasonable enquiries (e.g., wilful blindness) may also suffice for involvement in a contravention.

Platforms and brands could be "involved in a contravention" if they receive sufficient notice (e.g. through the receipt of complaints from viewers and third parties) that a post from an influencer is false, misleading or deceptive, and fail to take appropriate action, such as removing the post, requesting the influencer remove the post, or issuing warnings that the post may not be accurate or correct.