Influencer Marketing, Online Reviews and the law

Why the ACCC’s Latest Enforcement Action Matters

For many businesses, influencer marketing has become an ordinary part of doing business. Whether promoting cosmetics, food products, beverages, health products, clothing, homewares or technology products, social media endorsements are now deeply embedded in modern marketing strategies.

Yet recent action by the Australian Competition and Consumer Commission (ACCC) demonstrates that regulators are paying closer attention than ever to the way businesses use influencers, testimonials, online reviews and social media content.

The ACCC’s recent enforcement actions involving PhotobookShop and Hismile are significant not simply because penalties were issued. Rather, they reveal a broader regulatory concern about authenticity, transparency and trust in online environments.

In our view, these developments should serve as a wake-up call for businesses that rely on influencer marketing, user-generated content, online reviews or AI-assisted promotional content.

The ACCC’s Growing Focus on the Digital Economy

The ACCC has identified manipulative and deceptive conduct in digital environments as a long-term enforcement priority.

This is not a new concern. In recent years, the regulator has investigated fake reviews, misleading testimonials, comparison websites, digital platforms, online endorsements and influencer marketing practices. However, the recent PhotobookShop and Hismile matters suggest that the ACCC is becoming increasingly willing to take direct enforcement action where it believes consumers are being misled by the way information is presented online.

In the Hismile matter, the ACCC alleged that videos posted on social media appeared to show random shoppers trying products and expressing satisfaction with the results. According to the ACCC, those individuals were in fact Hismile employees.

The ACCC also alleged that videos relating to Hismile’s Glostik Tooth Gloss product gave consumers the impression that stains would be removed from teeth, when in fact the product merely concealed stains temporarily.

As ACCC Commissioner Luke Woodward stated:

“Misleading social media advertisements can reach millions of consumers and may impact their purchasing decisions. All businesses must ensure they are not making misleading or deceptive claims on social media platforms.”

The regulator further stated:

“The ACCC has prioritised consumer and fair-trading issues relating to manipulative or deceptive advertising in the digital economy for several years.”

These statements are important because they indicate that the ACCC views social media marketing as a mainstream consumer protection issue rather than a niche area of regulation.

The Law Applies Online Just as Much as Offline

Many businesses assume that social media content operates in a less formal environment than traditional advertising.

Legally, however, that is not the case.

Section 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth), commonly known as the Australian Consumer Law, prohibits conduct that is misleading or deceptive, or likely to mislead or deceive.

Importantly, a representation does not need to be deliberately false to create risk. The courts will often consider the overall impression conveyed to consumers.

Similarly, section 29 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) prohibits businesses from making false or misleading representations in connection with the supply or promotion of goods and services.

These provisions apply to websites, social media posts, influencer campaigns, testimonials, product demonstrations, online reviews, videos, podcasts and emerging forms of digital content.

In practical terms, the legal question is often not whether a particular statement is technically accurate. Instead, the question is what impression an ordinary consumer is likely to take away from the content as a whole.

That issue appears to have been central to both the PhotobookShop and Hismile matters.

Influencer Marketing Is Only Part of the Story

The legal risks extend far beyond influencer disclosure requirements.

Businesses increasingly use artificial intelligence tools to create marketing materials, generate reviews, edit videos, enhance images and produce promotional content.

Virtual influencers and AI-generated personalities are also becoming more common.

These developments raise new questions about transparency, authenticity and consumer expectations.

If a consumer believes they are viewing genuine customer feedback, but the content has been heavily edited, manipulated or generated by artificial intelligence, what obligations arise?

If an endorsement appears independent but is in fact sponsored, what disclosures are required?

If a testimonial is modified to remove criticism, does the overall impression become misleading?

These are questions that regulators are increasingly asking.

They are also questions that businesses should be considering before content goes live rather than after an investigation begins.

Why This Matters for Product Launches

When businesses launch a new product, they often focus on trade marks, packaging, intellectual property protection and product claims.

Those issues remain important.

However, the ACCC’s recent actions highlight that businesses should also consider the broader ecosystem surrounding a product launch. Marketing campaigns, influencer agreements, social media strategies, testimonials, online reviews and AI-generated content may all create legal risk if not properly managed.

The challenge is that these issues frequently sit across multiple areas of law, including consumer law, intellectual property law, privacy law and advertising regulation.

That is why legal advice should ideally be obtained before a campaign is launched rather than after concerns arise.

Final Thoughts

The ACCC’s recent enforcement activity should not be viewed as an isolated crackdown on influencers.

Rather, it reflects a broader shift towards protecting the integrity of online information and ensuring that consumers can make informed purchasing decisions in digital environments.

Businesses that use influencer marketing, social media advertising, online reviews or AI-generated content should ensure that their practices are reviewed carefully and regularly.

The legal risks often arise not from the product itself, but from the way it is presented to the public.

How Sharon Givoni Consulting Can Help

At Sharon Givoni Consulting, we advise businesses on product launches, intellectual property, branding, trade marks, consumer law, influencer marketing, social media campaigns and advertising compliance.

Whether you are launching a cosmetic product, beverage, food product, wellness brand or online business, obtaining legal advice early can help identify risks before they become costly disputes or regulatory investigations.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.