The Legal Side of Influencer and Brand Partnerships
Influencer marketing has evolved from a niche social media trend into a multi-billion-dollar global industry. In Australia, influencers and brands collaborate daily to promote products, services, and experiences to highly engaged audiences. While these partnerships can be lucrative and brand-enhancing, they also bring legal obligations that, if overlooked, can result in reputational damage, financial penalties, or even litigation.
Under Commercial and Corporate Law, both influencers and brands must understand their contractual rights, obligations, and compliance requirements. From advertising regulations to intellectual property protections, the legal side of these partnerships is far more than a handshake and a few Instagram posts.
Understanding Influencer and Brand Agreements
A formal influencer-brand contract is essential for protecting both parties. This contract should clearly define:
Scope of work - including content format, posting frequency, and platform requirements.
Payment terms - whether it’s a flat fee, performance-based, or product exchange.
Usage rights - outlining how the brand can reuse or repurpose content.
Exclusivity clauses - preventing the influencer from promoting competing products for a set period.
Termination provisions - detailing conditions under which the agreement can end early.
Without a well-drafted agreement, disputes over deliverables, payments, or usage rights can escalate quickly.
Advertising and Disclosure Obligations
In Australia, influencer marketing is subject to strict rules under the Australian Consumer Law (ACL), enforced by the Australian Competition & Consumer Commission (ACCC). Influencers must ensure that any sponsored content is clearly identifiable as advertising.
This can be achieved by:
Using explicit tags like #ad, #sponsored, or platform-specific disclosure tools.
Avoiding ambiguous terms such as #sp or #collab without additional explanation.
Failure to disclose paid partnerships can mislead consumers and breach ACL provisions, potentially leading to ACCC enforcement action and penalties.
Intellectual Property and Content Ownership
When an influencer creates content for a brand, it’s critical to determine who owns the intellectual property (IP). The agreement should address:
Whether the influencer retains copyright but grants the brand a licence to use the content.
Whether the brand fully owns the content upon payment.
Restrictions on altering or editing the content.
IP rights also extend to trademarks and brand assets. Influencers must obtain permission before using logos, slogans, or other protected brand elements. Brands, in turn, must respect the influencer’s personal branding.
Defamation and Reputation Management
Influencers are often seen as public figures, meaning any false or misleading statements — whether about a competitor or another brand — could lead to defamation claims. Brands must also be cautious about association; if an influencer engages in controversial behaviour, the brand’s reputation could be at risk.
To mitigate this risk, contracts often include morality clauses, allowing brands to terminate agreements if the influencer’s conduct damages the brand image.
Exclusivity and Non-Compete Clauses
Brands may require influencers to avoid endorsing competitors during and after the partnership. These non-compete clauses must be reasonable in scope, duration, and geography to be enforceable under Australian law. Overly broad restrictions could be challenged as unfair or anti-competitive.
Issue valid invoices with an Australian Business Number (ABN).
Charge and remit GST where applicable.
Report income to the Australian Taxation Office (ATO).
Brands should verify that influencers are compliant to avoid potential withholding tax issues.
International Influencer Partnerships
When partnerships cross borders, additional considerations arise:
Jurisdiction and governing law clauses to determine which country’s laws apply.
Currency exchange rates and international payment fees.
Compliance with advertising regulations in both the influencer’s and brand’s locations.
If parties cannot agree, the ACCC or the Australian Small Business and Family Enterprise Ombudsman can help appoint a mediator. Early, cooperative dispute resolution helps preserve relationships and minimise legal costs.
Risk Management Strategies for Both Parties
To minimise legal risks in influencer-brand partnerships:
Always have a written contract reviewed by a Commercial and Corporate Law specialist.
Keep records of communications, contracts, and content approvals.
Ensure all claims in content are truthful and substantiated.
Stay updated on ACCC guidelines and industry codes, such as the AANA Code of Ethics.
Influencer and brand partnerships can be powerful marketing tools — but only if built on a solid legal foundation. By understanding and complying with Australian Commercial and Corporate Law, both influencers and brands can protect their interests, maintain consumer trust, and avoid costly disputes.
Whether you’re negotiating your first collaboration or managing multiple high-value partnerships, legal clarity is non-negotiable. The right advice can turn a potential risk into a strategic advantage.
