Advertising and marketing law in Australia: legal risks for brands, agencies and creators

A campaign may now involve a brand, creative agency, media agency, influencer, production company, freelancer, platform, affiliate partner, AI tool, data provider and retailer. It may run across paid social, search, email, SMS, podcasts, native content, video, outdoor, events and e-commerce. Each channel may feel commercially different, but the legal risks often overlap.

For brands, agencies and creators, the question is not only whether a campaign is clever, memorable or commercially effective. It is also whether the campaign can be substantiated, whether sponsored content is properly disclosed, whether creative assets are cleared for use, and whether the underlying contracts allocate responsibility clearly.

Recent regulatory activity has made those issues more important. The ACCC has prioritised manipulative and false practices in digital markets, misleading pricing practices, and environmental and sustainability claims. In March 2026, the ACCC issued infringement notices to PhotobookShop in relation to influencer reviews, including non-disclosure of free products and the editing of a review in a way the ACCC alleged changed its overall impression. The ACCC also noted that advertising and marketing practices in the digital economy have been a priority for several years.

Corporate penalty exposure has also increased. From 28 March 2026, the fixed monetary limb of the maximum penalty test for certain competition and consumer law contraventions increased from $50 million to $100 million for corporations. This does not mean every misleading-conduct issue automatically attracts that penalty, but it underscores the seriousness of false or misleading representations and other penalty provisions under the Australian Consumer Law.

Advertising claims must be accurate and capable of proof

The starting point for many advertising disputes is the Australian Consumer Law. Section 18 prohibits conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive. Other provisions deal with false or misleading representations about goods, services, prices, sponsorship, affiliation, performance characteristics and other matters.

The risk is not limited to obvious statements such as "50% off", "Australia's best" or "guaranteed results". A campaign may also mislead through its overall impression, visuals, omissions, comparison tables, edited testimonials, disclaimers, or the way pricing is presented.

High-risk claims include:

• price and discount claims;
• "was/now" or "limited time" offers;
• performance, benefit or quality claims;
• health, safety or efficacy claims;
• "Australian made" or local-origin claims;
• comparison advertising;
• testimonials and reviews;
• environmental and sustainability claims;
• "as seen on" or affiliation claims;
• AI, technology or data-driven claims.

A technically true statement can still be misleading if the dominant impression is wrong. A disclaimer may not cure a misleading headline if it is too small, too late, too qualified or inconsistent with the main message.

Practical step: identify every express and implied claim in the campaign. For each claim, record the evidence that supports it, who holds that evidence, when it was last checked, and whether the evidence still applies to the current product, service, price or campaign context. For related commercial drafting, see our representations, warranties and indemnities guide.

Environmental and sustainability claims need particular care

Environmental claims are a current ACCC priority. The ACCC identifies environmental and sustainability claims, with a focus on greenwashing, as one of its 2026–27 compliance and enforcement priorities.

Claims such as "reef friendly", "ocean plastic", "carbon neutral", "sustainable", "recyclable", "low impact", "eco", "net zero" and "green" can all create risk if they are vague, exaggerated or not properly substantiated.

The issue is not only whether the business has good intentions. The question is whether the claim is accurate, current, specific and supported by evidence. Businesses should also consider what is left unsaid, including limitations, conditions or trade-offs that may change the overall impression.

Practical step: avoid broad environmental language unless it can be explained clearly. Prefer specific claims supported by evidence, such as the precise material, certification, methodology, timeframe or product attribute being described.

Influencer and sponsored content must be clearly disclosed

Influencer marketing is advertising when there is a commercial arrangement between a brand and a creator. That arrangement may involve money, free products, affiliate commissions, travel, event access, gifts, contra arrangements or other benefits.

The AANA Code of Ethics requires advertising to be clearly distinguishable as advertising. Its practice note states that where an influencer or affiliate accepts money, free products or services in exchange for promoting a brand's products or services, the relationship must be clear, obvious and upfront to the audience. It also warns that less clear labels such as "sp", "spon", "gifted", "affiliate", "collab", "thanks to" or merely mentioning the brand name may not be sufficient.

Brands should not assume disclosure is solely the influencer's problem. If the brand controls the brief, provides talking points, approves content, reposts content, or instructs the influencer how to describe the relationship, the brand may carry legal and reputational risk.

The PhotobookShop matter is a useful warning. The ACCC alleged that PhotobookShop instructed influencers not to disclose free products and later posted an influencer review without disclosing that the review had been commissioned and paid for through a free product. The ACCC also alleged that PhotobookShop edited a review to remove negative content in a way that changed the overall impression of the review.

Practical step: make disclosure obligations a mandatory term in every influencer, ambassador and affiliate agreement. Do not leave disclosure to the influencer's discretion.

Influencer and talent agreements should be signed before content is created

A recurring problem is the absence of a clear written agreement between the brand, agency, influencer or talent.

A properly drafted influencer or talent agreement should cover:

• campaign scope and deliverables;
• content format, channels and timing;
• approval rights;
• required disclosures;
• content standards;
• prohibited claims;
• product experience and authenticity;
• payment, gifting and value-in-kind arrangements;
• exclusivity and competitor restrictions;
• usage rights and duration;
• whitelisting, boosting and paid media rights;
• moral rights consents;
• confidentiality;
• takedown rights;
• termination rights;
• responsibility for non-compliant content.

Without a written agreement, brands may be unable to enforce content standards, prevent competitor promotion during an exclusivity period, reuse content after the campaign, or remove content if a complaint arises. For the broader commercial drafting context, see our commercial contracts guide and, where creator engagement raises worker-status questions, our employee or contractor explainer.

Agencies should also ensure they have authority to bind or manage talent on behalf of the client, particularly where the agency contracts directly with influencers, creators or production suppliers.

Copyright and creative asset clearance should be checked before launch

Advertising campaigns commonly involve copyright material, including copy, photography, video, music, illustration, graphic design, software, animation, scripts, fonts, layouts, website content and social media assets.

The commercial question is not only "who created it?" It is:

• who owns it;
• who can use it;
• where it can be used;
• how long it can be used;
• whether it can be edited or adapted;
• whether it can be used in paid media;
• whether it can be used internationally;
• whether it can be used after the agency relationship ends.

A licence cleared for one organic social post may not permit paid social, outdoor advertising, broadcast, website use, packaging, international use or an extended campaign period. Rights that expire during a campaign are a common and avoidable source of dispute.

Particular care is needed with:

• stock photography and video;
• music and sound recordings;
• fonts;
• freelance creative work;
• user-generated content;
• social media reposts;
• memes and trending audio;
• images of real people;
• talent, location and property releases;
• third-party brands or trade marks appearing in creative.

Public availability does not mean commercial clearance. Content found online should not be treated as free to use.

Practical step: maintain a campaign rights register that records each asset, owner, licence source, permitted channels, territory, duration, usage limits and expiry date.

Agency and client contracts should match the campaign

Many disputes between brands and agencies arise because the services agreement does not reflect the way the campaign actually works.

A short statement of work may be sufficient for a simple project. It is usually inadequate for a campaign involving paid media, production, third-party talent, influencer engagement, customer data, multiple platforms, regulated claims, approval gates and performance reporting.

Common gaps include:

• unclear deliverables;
• uncertain revision limits;
• disagreement about what is included in the fee;
• scope creep;
• late client approvals;
• rush fees;
• unclear media spend authority;
• ownership of creative concepts and final assets;
• responsibility for third-party licences;
• responsibility for claims supplied by the client;
• subcontractor and freelancer management;
• termination rights;
• cancellation fees;
• treatment of in-progress work;
• responsibility for pre-booked media;
• post-campaign access to accounts, data and assets.

The agreement should also address indemnities. If a client supplies a technical product claim, comparison claim, environmental claim or pricing claim, the agreement should identify who is responsible for substantiating it. If an agency engages talent or creators, the agreement should identify who is responsible for ensuring appropriate releases, disclosure and usage rights. The unfair contract terms regime can also apply to standard-form agency and supplier agreements with small businesses.

Promotions, competitions and giveaways need rules

Campaigns involving prizes, giveaways or competitions can raise separate legal issues.

A promotion may need terms and conditions dealing with eligibility, entry mechanics, judging or draw process, prize details, prize value, timing, verification, winner publication, substitution, privacy, tax issues, liability and cancellation.

Chance-based trade promotions may also involve state or territory requirements. The rules can vary depending on the structure of the promotion, where it is run, the prize pool and whether the winner is selected by chance or skill.

Common problems include:

• vague entry conditions;
• changing the rules after launch;
• unclear prize descriptions;
• no substitute-prize mechanism;
• failing to moderate user-generated entries;
• using entrant content without adequate permission;
• collecting personal information without suitable privacy wording;
• failing to check platform-specific promotion rules;
• adapting old terms without checking current requirements.

Practical step: prepare promotion terms before launch and review them against each jurisdiction in which the promotion will operate.

Email, SMS and direct marketing require separate compliance checks

Marketing compliance is not limited to the content of the advertisement. The channel also matters.

Commercial electronic messages may raise spam-law issues. Direct marketing involving personal information may raise Privacy Act issues, including Australian Privacy Principle 7.

Before launching an email, SMS, retargeting or database campaign, businesses should check:

• how the contact list was obtained;
• whether consent exists and can be proved;
• whether the sender is accurately identified;
• whether unsubscribe functionality is clear and working;
• whether suppression lists are honoured;
• whether personal information is used consistently with privacy notices;
• whether data has been shared with agencies, platforms or offshore providers;
• whether customer segments involve sensitive information;
• who is responsible if the campaign breaches spam or privacy obligations.

This is especially important where a brand asks an agency, platform or software provider to manage a campaign using the brand's customer database.

AI-generated creative creates ownership and clearance risks

AI-generated copy, imagery, video, voice, research and campaign variants are now common in marketing workflows.

There are two distinct legal issues that are often confused.

The first is ownership. Where content is generated substantially by an AI tool, there may be uncertainty about whether copyright subsists, who owns the output, and whether the brand can claim exclusivity.

The second is clearance. AI-generated output may resemble existing creative material, trade marks, products, packaging, artwork, people, voices or styles. A brand may not know what material influenced the output, but it may still face commercial or legal risk if the final campaign resembles protected material or misleads consumers.

AI also creates confidentiality and contract risks. A team member may upload client material, unreleased products, campaign concepts, customer information or confidential data into an AI tool without understanding how that tool handles inputs.

Practical step: contracts and briefs should state whether AI tools may be used, what information must not be entered into AI systems, whether AI use must be disclosed to the client, who reviews AI output, and who carries the risk of infringement, inaccuracy or non-compliance.

AI should not be used to generate fake reviews, fake testimonials or artificial customer experiences.

Disputes can often be prevented before launch

Most advertising disputes do not arise because the campaign was impossible to manage. They arise because the legal and commercial terms were rushed.

Common disputes include:

• brands refusing to pay for work they say was out of scope;
• agencies charging variations that were not approved;
• influencers posting late, off-brief or without disclosure;
• creators objecting to reuse of content;
• clients reusing rejected concepts;
• licences expiring mid-campaign;
• talent appearing in competitor campaigns;
• product claims proving inaccurate;
• paid media continuing after termination;
• platform accounts or campaign data being withheld.

The best protection is front-loaded: clear contracts, clear approval processes, clear disclosure obligations, clear rights clearance and clear escalation pathways. Where a dispute has already crystallised, see our resolving a business dispute before court and letter of demand guides.

Practical campaign legal checklist

Before launch, brands and agencies should ask:

• What express and implied claims does the campaign make?
• Can each claim be substantiated with current evidence?
• Are pricing, comparison and discount claims accurate?
• Are environmental or sustainability claims specific and supportable?
• Are disclaimers clear, prominent and consistent with the headline message?
• Is sponsored or paid content clearly disclosed?
• Are influencer, ambassador and talent agreements signed?
• Are all copyright, music, image, footage, font and design rights cleared?
• Are usage rights broad enough for paid media, duration, territory and platform?
• Are promotion or competition terms complete?
• Have spam, privacy and direct marketing issues been checked?
• Has AI use been approved and documented?
• Does the agency/client contract allocate responsibility clearly?
• Is there a documented approval trail before publication?

How Parke Lawyers can assist

Parke Lawyers advises businesses, agencies, creators and professionals on commercial and business law, advertising risk, contracts, disputes, employment and contractor arrangements, intellectual property-related commercial issues, and corporate governance. Where a matter proceeds to proceedings, our litigation and dispute resolution team acts for brands, agencies and suppliers in commercial disputes.

We can assist with campaign review, agency services agreements, influencer and ambassador agreements, promotions, direct marketing issues, supplier disputes, AI-use clauses and practical risk management before a campaign goes live.

This article contains general information only. It is not legal advice. Specific advice should be obtained for your circumstances. Parke Lawyers does not hold and does not claim specialist accreditation in advertising, intellectual property, privacy or competition law.