We examine the recent infringement notices issued by the ACCC against PhotobookShop for alleged misleading influencer reviews and Hismile’s misleading social media advertising.
Earlier this year, online photobook business Tomsem Consolidated Pty Ltd (trading as PhotobookShop) paid $39,600 in penalties after the ACCC issued it with two infringement notices for alleged misleading influencer reviews it posted on Instagram. The ACCC’s investigation was prompted by an influencer reporting concerns to the ACCC about a written agreement PhotobookShop presented to them requesting that they did not disclose they had been gifted a photobook in exchange for a review.
Notably, the ACCC’s enforcement action against PhotobookShop is the first time the regulator has issued a financial penalty for failing to disclose paid influencer reviews and for manipulating influencer-generated content.
Since taking action against PhotobookShop, the ACCC has issued seven infringement notices – amounting to $138,600 in penalties – against Hismile, an Australian oral and personal care company, in connection with admitted false and misleading social media content. Hismile posted videos on its social media platforms that:
- appeared to feature random shoppers in a public setting trialling its products and expressing their satisfaction with the results. In fact, the ‘random shoppers’ were Hismile employees; and
- may have given the overall impression that one of its products would remove stains, when in fact the product only temporarily concealed stains.
Himile also provided a court-enforceable undertaking and will implement a competition and consumer law compliance program and will publish a notice on its website and social platforms, informing consumers about the ACCC action.
The ACCC’s enforcement actions against both PhotobookShop and Hismile serve as a timely reminder that, as ACCC Deputy Chair, Catriona Lowe stated, ‘influencers, businesses hiring them as well as any third party facilitators need to be aware of their Australian Consumer Law obligations’ including to avoid making misleading or deceptive representations.
The ACCC has previously taken action against businesses for misleading online reviews, including Citymove, Aveling Homes, Meriton Property Services, Service Seeking, Bloomex, and HealthEngine, with penalties ranging from $6,600 to $3 million depending on the scale, duration and deliberateness of the conduct. While broad ranging in the nature of the impugned conduct, each of these cases involved businesses manipulating the information environment in which consumers make purchasing decisions.
Conduct relating to infringement notice 1: PhotobookShop commissioned positive reviews and requested influencers not to disclose that the business had paid them with free PhotobookShop products
The first infringement notice related to conduct by PhotobookShop that occurred over almost a year between August 2024 and September 2025, whereby PhotobookShop commissioned influencers to create reviews for social media and instructed influencers on 107 instances not to disclose that PhotobookShop had paid them with free PhotobookShop products (valued between $50 to $400). The ACCC issued an infringement notice to PhotobookShop for posting the influencer review to its Instagram page without disclosing it had commissioned and paid the influencer to create the review. As such, the ACCC alleges, PhotobookShop represented to consumers that the review was an unpaid review, when in fact this was not the case.
Conduct relating to infringement notice 2: PhotobookShop editing influencer reviews to remove negative content
The ACCC issued a second infringement notice for editing reviews by an influencer before posting the review to the PhotobookShop Instagram page. PhotobookShop commissioned an influencer to create a video review. In the original review, the influencer stated:
‘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.’
PhotobookShop edited the video so that the edited video stated: ‘I used their AI assistant tool to help me make it [the hard-cover photobook] and I am happy with my photo book.’
PhotobookShop had not disclosed that substantive edits had been made. The ACCC alleges PhotobookShop’s edits to the reviews changed the overall impression given by the influencer’s review.
In describing the harm caused by the impugned conduct, Ms Lowe stated that ‘When a business posts a review on social media, consumers would reasonably assume that the post genuinely reflects the review… PhotobookShop’s misleading reviews may have caused consumers to buy PhotobookShop’s products when they would not have bought them based on the complete video review.’
The ACCC can issue an infringement notice when it has reasonable grounds to believe a person or business has contravened certain consumer protection provisions in the ACL. The payment of a penalty specified in an infringement notice is not an admission of a contravention of the ACL.
Image credit: Freepik / Remixed to B&W and resized
