Spotlight On: Tegan Boorman from Social Law Co.

This week, we speak with Tegan Boorman, founder of Social Law Co. and host of The Social Law Co. podcast. Tegan is also Chair of the Australian Influencer Marketing Council (AiMCO), Australia’s leading influencer marketing body committed to elevating best practice in the industry. We discuss the recent ACCC sweep, what brands and influencers need to know about disclosure when working on influencer marketing campaigns and why you should always have an influencer agreement in place.

Thanks so much for your time Tegan. Firstly, can you tell us a little bit about yourself and Social Law Co.

I'm a senior lawyer who practices primarily in corporate, commercial, intellectual property, consumer and privacy law. Social Law Co. is a law firm which was established to assist business owners who use social media to advertise their business and make sales, to understand the legal issues surrounding this use. I regularly assist advertisers, influencer marketing agencies, talent management agencies and influencers / creators to understand the law and create robust agreements for influencer marketing campaigns.

Last year the ACCC conducted a sweep which found that 81% of social media influencers were creating content that raised concerns under Australian Consumer Law*. As a result of this, what are some of the trends and changes you are seeing in influencer collaborations in 2024?  

Each year, as influencer marketing spend continues to increase, industry participants are continuing to upskill their teams on the laws, regulations, codes and guidelines that govern influencer marketing campaigns.

Regulators have also been turning their attention to how our existing laws apply to these types of campaigns. We have seen several advertising codes and guidelines revised in recent years to clarify how certain laws apply to influencer marketing, including when it comes to ad disclosure, as well as the use of testimonials in advertising products and services such as therapeutic goods and regulated health services. We have also seen ASIC release an information sheet on how financial services laws apply to influencer marketing campaigns.

Due likely in part to the increased media attention around these issues, the increased risk associated with the growing attention from regulators, as well as resources made available by industry bodies like the Australian Influencer Marketing Council (AiMCO) and law firms like ours, we certainly seem to be seeing more advertising disclosure on sponsored influencer content than we have in the past, and a greater awareness within the industry of some of the limitations when advertising certain products and services which are subject to additional advertising regulation than other products and services.

The ACCC's sweep generated quite a bit of media attention around the need for ad disclosure on sponsored influencer content, which further helped raise this awareness within the industry. We expect to see new guidance issued by the ACCC on influencer marketing this year.  

We have also witnessed quite a few complaints to Ad Standards in recent years in relation to alleged breaches of the AANA Code of Ethics when it comes to distinguishable advertising. These complaints, and their determinations, have also attracted media attention which has likely raised awareness around the need for influencer ad disclosure.

Is disclosure the most important principal? What are the ‘rules’ around this disclosure for influencers, does it need to be on every post?

The disclosure obligations are just one of the legal considerations when it comes to influencer content. Parties involved should ensure the advertising content complies with all other relevant laws, including the Australian Consumer Law, and any service or product specific requirements, such as regulated health services, therapeutic goods and financial products and services. Advice should be sought in relation to the relevant product or service being advertised, the business being advertised, the platform on which the advertisement will appear, and the influencer involved in the campaign.

A change to the AANA Code of Ethics regarding distinguishable advertising a few years ago has resulted in each influencer post needing to be clearly distinguishable as advertising content if the posts are ads. Disclosure in past posts or in influencer bios will not be enough to satisfy the current ad disclosure obligations under the AANA Code of Ethics if the new post is found to be an ad for the brand.  Influencers should also consider the branded content policies on each platform when uploading advertising content. 

 Is there any change to these disclosure requirements across different platforms – is it the same on Snapchat and Tiktok as it is on Instagram?

There can be from a platform functionality and terms of use perspective. It's important to understand the obligations set out in the platform terms of use on each platform and ensure these obligations are met.  

We hear and talk a lot about the requirements of influencers in disclosing collaborations and paid content. What does this mean for brands and their responsibility and process for engaging with influencers?

Brands are responsible for content uploaded by influencers engaged by them to advertise their business. For this reason, it is important to have suitable agreements in place between the relevant parties to ensure that both parties understand their obligations.

What about content created across borders – either by influencers outside of Australia or international brands working with Australian influencers? What happens to disclosure requirements in these situations?

Ad disclosure has been a hot topic around the globe in recent years. Many jurisdictions have similar obligations to Australia when it comes to ad disclosure, however it is important for parties to obtain advice from lawyers practicing in the jurisdictions they are targeting with their marketing to ensure they are meeting any local legal requirements.   

At what point is a commercial agreement needed? Are there any guidelines around monetary value of the product or how many followers the influencer has and when it is important to make an arrangement more formal?

Agreements are important whenever a third party, such as an influencer or creator, is being engaged by a brand to advertise their products or services. Putting aside the risks associated with the monetary value of the transaction and the size of the influencer's following, there are other, sometimes even more important points to agree in the influencer agreement.

What are the fundamentals to include in any brand collaboration agreement?

There is quite a lot to cover depending on the specific campaign, which can include, but is by no means limited to, the term of the agreement, briefing considerations, specific requirements for posting obligations - including platforms, accounts, dates and times, intellectual property rights and moral rights, fees, invoicing and payment structure, warranties in relation to followers, testimonials, clearances regarding location, talent, intellectual property rights and product / service specific ad requirements, ad disclosure obligations, restraints and exclusivity, any prohibitions in relation to the content, requirements to edit, amend or remove content or comments etc. on the brand’s request, requirements for advertising discount codes / affiliate links, account limitations – such as removing content without the brand’s approval or voluntarily disabling accounts, insurance requirements, termination rights, the nature of the relationship between the parties, tax and statutory entitlements, and the governing law and jurisdiction that will apply.

Once an influencer has created a piece of content for a brand, what can the brand do with it– how broadly can they use it and repurpose it?

This will depend on what was agreed between the parties at the time of arranging the campaign. Having a clear agreement in place minimises the risk of a dispute in relation to content usage rights, which should be clearly set out in the agreement.

Brands obviously need to do their research when they select influencers to work with, and make sure they are comfortable with the influencers style and brand fit. What happens if an influencer produces content they don’t like? What recourse does a brand have? 

Again, this will depend on what was agreed between the parties at the time of arranging the campaign.

Finally, if any of our Flaunter brands need help in crafting a collaboration agreement, where can they find you?

You can find us on Instagram @sociallawco, Facebook @sociallawco or reach out to me on LinkedIn.

You can also listen to our podcast The Social Law Co. Podcast wherever you get your podcasts, or book a consult through our website sociallawco.com.au

Information contained within this blog post is intended to be general information only and is not in any way intended to constitute legal advice. You should not act or rely on any information found in this blog post without obtaining prior advice specific to your circumstances.

* https://www.accc.gov.au/system/files/social-media-influencer-testimonials.pdf