“I’m obsessed with this. I use it every single day and couldn’t recommend it enough.”

Shared casually with thousands of followers, a post like this looks spontaneous, personal and sincere. To the average consumer, it appears to be nothing more than a trusted recommendation from a familiar voice, rather than a paid advertisement. Practices of this kind have become a clear focus of the ACCC’s enforcement activity in its efforts to curb manipulative online conduct affecting consumers.

In this article, we examine this issue through the ACCC’s enforcement action against Tomsen Consolidated Pty Ltd, trading as PhotobookShop. The Melbourne-based brand was issued with two infringement notices by the Commission in relation to alleged contraventions of the Australian Consumer Law (ACL), following use of misleading influencer content on Instagram to promote its products.

It is important to note at the outset that the ACCC’s action in this matter took the form of infringement notices. An infringement notice may be issued where the ACCC has reasonable grounds to believe a contravention of the ACL has occurred, and payment of the specified amount does not constitute an admission of a contravention.

Alleged conduct

Failure to disclose benefits received

The ACCC’s investigation commenced after an influencer reported concerns directly to the Commission, arising from a written agreement presented by PhotobookShop which requested that the influencer not disclose that a photobook had been gifted to them in exchange for a review.

Between August 2024 and September 2025, PhotobookShop is alleged to have commissioned influencers to produce social media reviews and, on 107 occasions, instructed influencers not to disclose that they had received free PhotobookShop products valued between approximately $50 and $400. Those instructions included statements such as:

“Please ensure that your videos do not mention that the product is free, sponsored, or that PhotobookShop contacted you to create them in exchange for products.”

The resulting posts were posted to PhotobookShop’s Instagram page and were allegedly presented to consumers as organic, independent reviews, when in fact they were paid advertisements.

Editing reviews and altering consumer impressions

The second infringement concerned PhotobookShop’s alleged substantive editing of another influencer’s review to remove negative content. The influencer had been commissioned to create a review video and included in their original video that PhotobookShop’s AI assistant tool was “a bit fiddly” and “a bit confusing”. The edited version posted by PhotobookShop retained only the positive conclusions in the influencer’s review and neglected to include any disclosure that substantive edits had been made to the content.

Original:

“I used their AI assistant tool to help me make it [the hard-cover photobook] and while it was a bit fiddly, it did help the overall experience and then I got the chance to modify anything I was unhappy with. It was a bit confusing but I am happy with my photo book.”

Edited:

“I used their AI assistant tool to help me make it [the hard-cover photobook] and I am happy with my photo book.”

The ACCC alleges that these edits changed the overall impression conveyed to consumers and resulted in a review that appeared materially more favourable than the original content.

Breaches of the ACL and a case for unfair trading practices

The publication of an amended influencer testimonial from which negative commentary had been removed clearly has the potential to engage section 29(1)(e) of the ACL. That provision specifically prohibits false or misleading representations that purport to be testimonials relating to goods or services and provides a clear statutory footing for the ACCC’s use of infringement notices in this matter.

Other aspects of the conduct, particularly the failure to disclose that influencer content was produced pursuant to a paid arrangement, are in our assessment more naturally characterised as giving rise to an overall misleading impression. Conduct of that nature is therefore more readily analysed under the general prohibition against misleading or deceptive conduct in section 18 of the ACL. As section 18 is not a civil penalty provision, this raises a further question as to whether the non-disclosure conduct can properly be characterised by reference to the more specific prohibitions in section 29(1) of the ACL, which are subject to civil penalties.

Sections 29(1)(g) and 29(1)(h) of the ACL are each directed to affirmative representations that goods, services or a person have sponsorship, approval or affiliation that they do not in fact have. Those provisions have traditionally been applied where a trader positively asserts or suggests an endorsement or association (for example, by misleadingly claiming official approval, certification or partnership that does not in fact exist). By contrast, undisclosed influencer marketing does not ordinarily involve an express claim of sponsorship or approval, but rather the absence of disclosure as to an existing commercial relationship.

For that reason, those provisions may sit less comfortably with conduct that derives its potentially misleading character from silence or omission, rather than from a false statement of endorsement. This tension may help to explain the ACCC’s long standing policy interest in the introduction of a general prohibition on unfair trading practices. From a regulatory perspective, conduct such as undisclosed paid influencer marketing may sit awkwardly within the ACL’s existing, representation-based prohibitions while nevertheless raising concerns about informed consumer decision making.

We have explored the proposed unfair trading practices regime in more detail in an earlier article, including its potential scope and the policy considerations underpinning it. As discussed there, the proposed reforms are intended to address forms of conduct that may not always be captured by the existing ACL framework, but which nevertheless raise concerns about fairness, transparency and consumer trust. While those reforms remain subject to the legislative process, the PhotobookShop infringement action may be seen as illustrating some of the types of practices that feature in broader policy discussions around the scope of existing consumer protection framework.

The ACCC has also published guidance for influencers and businesses engaging in influencer marketing, which is available on its website. We have published a separate article on these issues here.

How can we help?

Our dedicated consumer law team can assist with reviewing contracts and marketing practices to help ensure compliance with the ACL. If you would like more information about the services we provide, please contact us.

This article was written by Teresa Torcasio, Partner, and Chau Le, Law Graduate.