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By Marianne Marchesi
We’ve all seen it play out. A slick influencer campaign drops: beautiful visuals, snappy captions and engagement through the roof.
But then the backlash begins. A product claim that’s too good to be true. Health benefits that don’t stack up. An exposé on the very same influencer who’s now tarnished your brand.
Welcome to the new era of influencer marketing, where creativity alone won’t suffice, and legal missteps can go viral faster than your hero reel.
It’s also an area that’s a hot topic for Australia’s competition and consumer law regulator, the Australian Competition and Consumer Commission (ACCC), which is actively monitoring influencer and brand collabs.
Brands – not the influencer – are legally accountable
One of the fundamental aspects of compliance when collaborating with influencers is ensuring accurate representation of products or services. Misleading or inflated claims about benefits can deceive consumers, leading to potential legal repercussions. For instance, exaggerating health benefits could mislead consumers, violating Australian Consumer Law provisions.
Brands and influencers should also adhere to advertising standards set by authorities like the Australian Association of National Advertisers, as well as any industry-specific authorities.
What many brands don’t realise is that if an influencer makes a misleading claim about a brand’s product or service, the legal liability sits with the brand, not them. While both the brand and the influencer might face backlash, brands are responsible for the conduct of those representing them.
This means that a casually worded transformation story (“who needs Botox with these eye patches?!”) is extremely risky and unlawful if the claims can’t be substantiated.
Clear brand guidelines, proper vetting and a robust legal review process are your insurance policy.
Three recurring legal pitfalls:
Even the most well-executed campaigns can run into trouble. Three legal missteps that I commonly see are:
Vague or misleading claims
From beauty and finance to coaching, campaigns often push the limits of what’s true. ‘I manifested my dream income in 30 days’ or ‘This supplement changed my life’ may sound on-brand, but without evidence, they’re a legal risk.
No guidelines for influencers
When creators go rogue, even with the best intentions, they may inadvertently misrepresent your brand or promise outcomes that can’t be delivered.
Creating brand guidelines for influencers can provide them with clear directions on your brand’s expectations in promoting the product or service in compliance with the ACL. It should also provide mechanisms for monitoring and reporting issues related to promotional content.
Undisclosed paid relationships
Failure to disclose paid partnerships or freebies not only breaches the law, but also consumer trust. The ACCC has made it clear: #ad, #gifted, Paid Partnership tags and similar disclosures must be made where the influencer is receiving an incentive or benefit. They should be clear and upfront, not buried at the end of a caption or hidden in a sea of hashtags.
Don’t be fooled by the personal brand
One of the biggest traps for brands is getting comfortable when a creator has built a trusted, authentic personal brand. That trust is not a substitute for compliance.
Consumers are increasingly cynical about “authenticity” when it’s being monetised. The borrowed authority of a trusted influencer doesn’t shield your brand from scrutiny – in fact, it can amplify the fallout when things go wrong.
Add to that, if an influencer makes a public misstep, brands need to have the ability to pull the plug on the collaboration if they wish. And without a contract with the influencer, they may not be able to.
How to futureproof your campaigns
So, how do you stay creative and compliant? The good news is they’re not mutually exclusive.
Here’s a quick checklist to help:
Embed legal in creative: Treat your legal team as a partner, not a handbrake or a rubber stamp (and definitely don’t share the marketing collateral for a ‘quick sign-off’ the day before launch!). Involve them early to flag risks and work through alternative messaging before it goes live.
Audit your creators: Do basic due diligence. Look at past posts, controversies and alignment with your brand values. The ‘wrong’ influencer can do more harm than good.
Create an influencer playbook: Clearly define what can and cannot be said. Spell out deliverables and disclaimers, and give your influencers your brand guidelines.
Review the message: Legal should review not just what’s said, but how it’s said. Tone matters, especially where there’s a risk of misinterpretation.
Reframing legal as a creative advantage
Smart marketing today demands more than visual polish. The most effective campaigns are backed by strategic thinking, legal clarity and a clear understanding of audience trust.
For marketing leaders, legal shouldn’t be an afterthought and doesn’t have to stifle creativity. Involve your legal partner at the concept stage, not just when issues arise. When integrated early, it can enhance your messaging, strengthen credibility and reduce risk. That early insight can help shape bold, confident campaigns that stand up to scrutiny and resonate more deeply with your audience.
Marianne Marchesi is the managing principal of Legalite and an award-winning commercial lawyer.