If you’re an influencer, content creator, or a business working with creators, you’ve probably wondered: do you actually have to say it’s an #ad?
The short answer is yes, in most cases you should be clearly disclosing paid and incentivised content. It’s not just about platform “rules” - it’s about avoiding misleading conduct and building trust with your audience.
This guide has been updated to reflect the current compliance focus and the practical realities of modern influencer marketing, so you can publish content confidently (and avoid the awkward “we didn’t realise we had to disclose” moment later).
When Do You Need To Disclose That A Post Is An #Ad?
You generally need to disclose when there’s a material connection between you and a brand that could affect how your audience views your content.
That “material connection” isn’t limited to cash payments. It includes any arrangement where you’re getting something of value and posting because of it (or where the brand has some level of control or expectation).
Common Situations Where Disclosure Is Usually Required
- You were paid to post (flat fee, commission, or performance-based pay).
- You received free or discounted products/services in exchange for posting (or with an expectation you’ll post).
- You’re an ambassador or have an ongoing partnership relationship with the brand.
- You got gifted something and the brand requested content, approved content, or set deliverables.
- You’re using affiliate links or codes that earn you a commission or benefit.
- You’re promoting your own business but it may not be obvious to your audience that you own it (for example, you’re “reviewing” a product you sell).
Even if you genuinely love the product and would have posted anyway, if you received a benefit connected to the post, you should assume disclosure is needed.
What About PR Gifts With “No Obligation To Post”?
This is a grey area that trips people up.
If a brand sends you a product with a message like “no obligation to post”, but the relationship is still part of a promotional strategy (and you’re included because of your influence), disclosure can still be the safer move - especially if the product is valuable or the pattern of gifts is ongoing.
A practical way to think about it is: would your audience view this differently if they knew you received something for free? If yes, disclose.
What Does New Zealand Law Say About Influencer Disclosures?
New Zealand doesn’t have one single “Influencer Act”, but that doesn’t mean influencer marketing is unregulated.
The key legal principle is that advertising must not be misleading, and you should not create a false impression that your content is purely independent or “organic” when there’s a commercial arrangement behind it.
The Fair Trading Act 1986 (Misleading And Deceptive Conduct)
The Fair Trading Act 1986 is the big one. It prohibits misleading or deceptive conduct in trade, and it also covers false or misleading representations.
If you promote a product or service and your audience reasonably believes it’s an independent recommendation - when it’s actually sponsored or incentivised - that can create a risk under the Act.
This applies to:
- influencers and creators (especially if you’re operating like a business), and
- brands and agencies who organise, approve, or benefit from the advertising.
In practice, disclosure is one of the simplest ways to reduce the risk of your post being treated as misleading advertising.
Advertising Standards (ASA) Complaints Risk
On top of legislation, the Advertising Standards Authority (ASA) system matters in the real world because it’s a common pathway for complaints.
ASA decisions aren’t the same as a court ruling, but they can still cause real headaches:
- you may be asked to remove or amend content,
- brands may pause campaigns or terminate agreements, and
- it can damage your reputation if a decision is published.
If you’re working with brands regularly, it’s worth treating disclosure as a baseline professional standard, not a “nice to have”.
How Do You Disclose Properly (Without Ruining Your Content)?
A disclosure works if it’s clear, prominent, and understandable to an ordinary viewer.
It shouldn’t be hidden, vague, or only visible if someone clicks “more”. If someone can miss it easily, it’s probably not good enough.
What Counts As “Clear And Prominent”?
As a rule of thumb:
- Put the disclosure at the start of the caption (or within the first line).
- For video, include disclosure on-screen and/or spoken early on.
- For stories, make sure the disclosure is readable (size/contrast) and stays up long enough.
- Don’t rely on a long list of hashtags where the disclosure gets buried.
Good Disclosure Examples
- #Ad
- Paid partnership with
- Sponsored by
- I received this product for free from (if that’s the situation)
- Affiliate link (where you earn commission)
The simpler, the better. Your audience should instantly understand the relationship.
Disclosures That Often Aren’t Enough
- #sp or #spon (too vague for many viewers)
- Thanks ! (can look like a personal shoutout, not an ad)
- Collab without context
- Disclosure hidden at the end of a long caption after “...more”
If you’re unsure, assume someone skimming quickly should still understand it’s advertising.
Do You Have To Use “#Ad” Specifically?
Not necessarily. What matters is clarity. “Paid partnership”, “sponsored”, or “advertisement” can all work.
That said, #Ad is popular because it’s short, widely understood, and hard to misinterpret.
What About Affiliate Links, Discount Codes, And “Gifted” Posts?
Influencer marketing isn’t just paid brand deals anymore. A lot of promotions happen through affiliate links, discount codes, or gifting.
These can still be ads in substance, even if they don’t feel like traditional advertising.
Affiliate Links And Discount Codes
If you get a benefit when someone purchases using your link or code (commission, store credit, freebies, bonus payments), you should disclose.
Good options include:
- “Affiliate link”
- “I may earn commission if you buy via this link”
- “Use my code - I receive a commission at no extra cost to you”
Also make sure you don’t overpromise results (for example, “this will definitely fix your skin in 3 days”) unless you can back it up. Consumer-facing claims can create problems under consumer law principles, especially where health or performance claims are involved.
Gifted Products
“Gifted” content often needs disclosure when:
- the brand asked for content (even informally),
- there’s an ongoing relationship, or
- the gifted product is high value and the post is promotional.
A clear line like “Gifted by ” or “PR product” can help - but if there were deliverables or approvals, “#Ad” or “Sponsored” may be more accurate.
Giveaways And Competitions
If you’re running a giveaway with a brand, make sure you have proper terms (entry criteria, timing, how winners are chosen, how prizes are delivered, and how you’ll handle disputes). A quick Instagram caption often isn’t enough if something goes wrong.
It’s common for creators and brands to use Competition Terms And Conditions to reduce risk and make the promotion rules clear from the start.
What Should Brands Put In Influencer Agreements To Manage Disclosure Risk?
If you’re a brand, it’s not enough to “hope” the influencer discloses properly. If the content is misleading, the brand can be caught up in the fallout too.
The easiest way to stay protected is to set expectations clearly in writing before the campaign starts.
Key Clauses To Include In Influencer Agreements
Whether you’re using a bespoke contract or a more standard influencer arrangement, consider including clauses that cover:
- Disclosure obligations: specify the wording and placement (e.g. #Ad at the beginning of the caption, or “Paid partnership with…”).
- Content approval process: who reviews, how many rounds of edits, turnaround times, and what happens if the influencer posts without approval.
- Claim substantiation rules: what the influencer can and can’t say (especially for health, beauty, financial, or performance claims).
- Usage rights: can the brand repost, run ads using the content (“whitelisting”), or use it on a website?
- Exclusivity / conflicts: whether the influencer can promote competitors during the campaign period.
- Take-down and correction rights: the right to request edits/removal if something is non-compliant.
If you’re formalising a longer-term partnership, it can also help to document the relationship properly with an Influencer Agreement so everyone’s clear on deliverables, ownership, approvals, and compliance from day one.
Don’t Forget Privacy (Yes, Even For Influencers)
If you collect personal information through giveaways, email sign-ups, subscriber lists, DMs, or referral forms, you may have obligations under the Privacy Act 2020.
For example, if you’re collecting names, emails, addresses, or any identifying details to deliver prizes, you should think about:
- what you’re collecting and why,
- how you’re storing it,
- who you’re sharing it with (like a fulfilment partner or brand), and
- how long you’ll keep it.
A clear Privacy Policy can be a practical way to explain this to your audience and reduce misunderstandings.
What If The Influencer Is Actually Working Like An Employee?
Most influencers are independent contractors, but sometimes brands bring creators “in house” in a way that starts to look like employment (set hours, high control, ongoing role, exclusivity, integrated into the business).
If the relationship is really employment in substance, the legal obligations change significantly. In that case, you may need a proper Employment Contract and compliant processes around leave, termination, and workplace policies.
This is one of those areas where getting tailored advice early can save you a lot of stress later.
Key Takeaways
- If you have a material connection to a brand (payment, gifts, discounts, affiliate commission, or a partnership), you should usually disclose that your content is advertising.
- In New Zealand, failing to disclose can create legal risk under the Fair Trading Act 1986 because it may mislead your audience about the true nature of the endorsement.
- A good disclosure is clear and prominent: place it early in captions, make it readable on stories, and consider on-screen or spoken disclosures for video.
- Affiliate links, discount codes, gifted items, and giveaway collaborations can still require disclosure, even when there isn’t a traditional “paid post” fee.
- Brands should manage disclosure and advertising risk in writing by setting clear requirements in an influencer agreement, including approval processes and take-down rights.
- If you collect personal information through giveaways or sign-ups, you should consider your Privacy Act 2020 obligations and use a privacy policy to set expectations clearly.
If you’d like help setting up influencer agreements, campaign terms, or making sure your advertising and disclosures are compliant, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
