Social media has turned creators into businesses and brands into publishers. A single post can reach hundreds of thousands of people, earn a creator a fee, and expose a brand to a complaint, a takedown or a claim. Yet many influencer campaigns in South Africa still run on a WhatsApp message and an invoice.
This article explains the main legal rules that apply to influencer marketing and content creation in South Africa, and what brands, agencies and creators should have in place.
Disclosure: when is a post an advert?
The Advertising Regulatory Board’s Code of Advertising Practice, including its rules on social media and influencer marketing, requires commercial content to be clearly identifiable as such. In practice, a post must be disclosed as advertising where there is a commercial relationship between the brand and the creator and consumers would not otherwise know that the content is promotional.
Key points:
- Payment is not limited to cash. Free products, travel, event invitations, discounts, ambassador arrangements and affiliate commissions can all create a commercial relationship.
- Disclosure must be clear and upfront. A label such as “#ad” or “Sponsored” should be visible without clicking “read more”, and should not be buried in a block of hashtags. Vague wording such as “thanks to…” is generally not enough.
- Changing platforms does not change the rule. In a 2026 ruling involving a beer brand, the ARB found that content posted by a paid brand advocate on her personal X account, using the brand’s logo and identical to her paid Instagram content, should have been disclosed. The brand’s argument that the post was “organic” was rejected, and it was directed to have the post removed or amended.
- Restricted products carry extra rules. Alcohol, gambling, financial products, medicines and products aimed at children are subject to additional advertising restrictions, both under the ARB Code and under sector-specific legislation.
Although the ARB is a self-regulatory body, its rulings are widely followed by advertisers and media owners, and an adverse ruling can require content to be withdrawn across platforms.
The Consumer Protection Act
Independently of the ARB, the Consumer Protection Act 68 of 2008 (CPA) prohibits misleading marketing. Section 29 prohibits marketing that is likely to create a false impression, and section 41 prohibits false, misleading or deceptive representations, including by omitting a material fact. Undisclosed paid endorsements, fake reviews and exaggerated claims about a product’s results can fall foul of these provisions, exposing the brand to complaints to the National Consumer Commission.
The influencer agreement
A written agreement protects both sides and avoids most disputes. It should deal with:
- deliverables: the platforms, number and format of posts, timelines and approval process;
- disclosure: the wording to be used, and an obligation on the creator to comply with the ARB Code and the CPA;
- fees and expenses: how and when the creator is paid, and how gifted products are treated;
- exclusivity: whether the creator may work with competing brands, for how long and in which product categories;
- ownership and usage rights: who owns the content, whether the brand may repost or use it in paid advertising, for how long and in which territories;
- image rights: permission to use the creator’s name, likeness and voice;
- reputation clauses: rights to suspend or terminate if either party becomes involved in conduct that harms the other’s reputation;
- performance data: access to analytics and audience information, subject to POPIA; and
- termination, takedown and removal rights, and what happens to content already published.
Who owns the content?
Under the Copyright Act 98 of 1978, copyright in photographs, videos, text and music generally belongs to the person who created it. A creator who is not an employee will usually own the content they produce, even if a brand paid for it, unless the copyright is assigned in writing and signed. If the brand wants to own the content, or to use it beyond the original campaign, the agreement must say so.
Creators and brands must also clear the rights in anything else that appears in the content, including music, footage, artwork, other people’s trade marks and recognisable people. Platform music libraries are often licensed only for personal, non-commercial use, which may not cover branded content.
The Constitutional Court’s June 2026 judgment on the Copyright Amendment Bill upheld a new fair use exception, which may in time make room for commentary, criticism, parody and similar uses. Until the Bill is enacted and the courts have applied it, creators should not assume that reusing someone else’s work is permitted. See our article on protecting intellectual property.
Using someone’s name or image
South African courts protect a person’s identity against unauthorised commercial use. Using a person’s name, image or likeness to promote a product or service without their consent can amount to an infringement of their personality rights, even if no false statement is made. Brands should obtain written consent and releases from everyone who appears identifiably in commercial content, including models, customers and members of the public.
Defamation and online statements
Creators who review products, call out businesses or comment on public figures can be liable for defamation if they publish false and damaging statements. Truth in the public interest, fair comment and reasonable publication are recognised defences, but they must be established. Businesses that are defamed online can seek urgent interdicts requiring content to be removed, as well as damages. Reposting and sharing can also amount to publication.
Data, direct marketing and children
Competitions, giveaways, sign-up links and direct messages involve personal information. The Protection of Personal Information Act 4 of 2013 (POPIA) applies, including its restrictions on unsolicited electronic direct marketing. Competitions must also comply with the CPA’s rules on promotional competitions. Content directed at children, or campaigns using child creators, require particular care, including parental consent and compliance with advertising restrictions. See our article on direct marketing and data protection.
Checklist for brands and agencies
- Do we have a written agreement with every creator, covering disclosure, usage rights and termination?
- Do we own, or have a licence to use, the content for everything we plan to do with it?
- Have we cleared the music, footage and other third-party material in the content?
- Do we monitor campaign content for disclosure across all the creator’s accounts?
- Do our competitions and data collection comply with the CPA and POPIA?
Checklist for creators
- Are my commercial posts clearly disclosed, including gifted and affiliate content?
- Do I understand what rights I am giving the brand, and for how long?
- Does my exclusivity clause prevent me from earning income elsewhere?
- Am I registered for tax correctly, and am I invoicing properly?
- Have I cleared the music and other content I use?
How O’Reilly Law can help
We act for brands, agencies, creators and production companies. We draft and negotiate influencer, talent, production, licensing and distribution agreements, advise on advertising compliance under the ARB Code and the CPA, protect brands and content through trade marks and copyright, and act in defamation, infringement and contract disputes.
Launching a campaign or signing a brand deal? Contact us before the content goes live.
Related reading: Protecting your intellectual property · Urgent interdicts in South Africa
This article is general information and not legal advice. Correct as at October 2026.