Testimonial and Image Consent Lawyers Adelaide: Customer Reviews, Photo Releases and Recordings
Testimonial and image consents in South Australia
Customer testimonials, reviews and photos persuade because readers take them to be genuine and freely given. Talon Legal drafts testimonial and image consent forms, photo and video releases and review policies for Adelaide businesses, and advises photographers and videographers on who owns their images and how they may use them. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Testimonial and image consent key facts
| Issue | Position in South Australia |
|---|---|
| Fake testimonials | A false or misleading representation that purports to be a testimonial, or concerning a testimonial, is prohibited (ACL section 29(1)(e) and (f)). |
| Testimonials in court | Taken to be misleading unless evidence is adduced to the contrary (section 29(2)). |
| Maximum penalty, section 29 | Body corporate: the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. Anyone else: $2,500,000 (section 224(3) and (3A)). |
| Review practices | Masking complainants' email addresses in a system for inviting reviews was likely to mislead (ACCC v Meriton at [213], [216]). |
| Health services | Advertising a regulated health service must not use testimonials. Maximum $60,000 for an individual and $120,000 for a body corporate (Health Practitioner Regulation National Law (South Australia) section 133). |
| Who owns a photo | Generally the person who took it, unless it was taken by an employee or the copyright is assigned in writing (Copyright Act sections 10(1), 35(2), 35(6) and 196(3)). |
| Weddings and family portraits | The person who paid for a photograph for a private or domestic purpose owns the copyright, unless the agreement says otherwise (sections 35(3), (5) and (7)). |
| Moral rights | For works not in films, a written consent covering specified acts and works allows editing and uncredited use (section 195AWA). |
| Recording calls | Recording a private conversation with a listening device, even as a party, is an offence unless all principal parties consent or another exception applies. Maximum $75,000 for a body corporate (Surveillance Devices Act 2016 (SA) section 4). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a testimonial and image consent lawyer in Adelaide?
Our testimonial and image consent lawyers in Adelaide act for businesses that use testimonials, reviews, and photos or video of customers, staff or guests in their marketing, and for photographers and videographers. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), decides when a testimonial is misleading, and the Copyright Act 1968 (Cth) decides who owns the photos and recordings. This page states the law current to 6 November 2026.
This guide is part of our marketing and advertising practice. Related guides cover influencer and endorsement agreements, online sales terms and reviews, film releases and clearances and data protection and privacy.
For photographers’ booking terms, course testimonials and reviews on platforms, see our guides to photography terms and conditions, online course terms and disclaimers and online marketplace and platform terms.
Free Consultation. Send us your consent form or review process before the next campaign. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- When is a testimonial misleading?
- Can a business edit, select or reward testimonials?
- Can health practitioners use testimonials?
- Who owns a customer photo or video?
- What should a consent form cover?
- Can photographers use client images in their marketing?
- Does the Privacy Act apply to customer images?
- What is the statutory privacy tort?
- Can a business record a customer's testimonial or call?
- What if a customer withdraws consent?
- How similar matters tend to play out
- How we act on testimonial and image consents
- Case law
- Frequently asked questions
When is a testimonial misleading?
When it is invented, or presents a customer’s experience as something it was not. In trade or commerce, in connection with the supply or promotion of goods or services, a person must not make a false or misleading representation that purports to be a testimonial by any person, or one concerning a testimonial or a purported testimonial (ACL section 29(1)(e) and (f)). The general ban on misleading or deceptive conduct also applies (section 18).
A testimonial written by staff or an agency and attributed to a customer purports to be a testimonial, and so does a review generated by software and presented as a customer’s words.
Evidence matters. In a proceeding about a representation of the kind in section 29(1)(e) or (f), the representation is taken to be misleading unless evidence is adduced to the contrary (section 29(2)). Adducing evidence does not by itself make it not misleading, and no person bears an onus of proving it is not misleading (section 29(3)). A business should keep the source of every testimonial it publishes, with the customer’s consent.
The maximum penalty for a body corporate that contravenes section 29 is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. For anyone else it is $2,500,000 (section 224(3) and (3A)).
Can a business edit, select or reward testimonials?
Within limits. Shortening a testimonial or correcting spelling is usually safe if the meaning is unchanged and the consent allows edits. Removing a qualification, or joining comments from two customers into one, risks a false or misleading representation concerning a testimonial (section 29(1)(f)).
Selection matters too. In ACCC v Employsure Pty Ltd [2021] FCAFC 142, the Full Court said many readers absorb an advertisement’s general thrust, and the first impression will often decide what is represented ([98]). Hand-picked praise presented as typical conveys an impression the business must be able to support, and small print may not correct it.
The way reviews are gathered can mislead too. In ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305, a serviced apartment business used a system for inviting TripAdvisor reviews, masked the email addresses of guests who had complained, and withheld addresses in bulk after major service disruptions. Moshinsky J held those practices were likely to mislead or deceive (section 18) ([213]), and liable to mislead the public as to the characteristics and suitability for purpose of its accommodation services (section 34) ([216]). Screening out unhappy customers before inviting reviews carries the same risk.
Rewards need disclosure, because the reader usually does not know about them. A testimonial obtained with a discount or free product and presented as unprompted may convey a false impression (sections 18 and 29(1)(f)), and a reward should never depend on the testimonial being positive. The online sales terms and consumer law guide covers reviews on online platforms.
Can health practitioners use testimonials?
Not in advertising a regulated health service. A person must not advertise a regulated health service, or a business that provides one, in a way that uses testimonials or purported testimonials about the service or business (Health Practitioner Regulation National Law (South Australia) section 133(1)(c)). Genuine testimonials given with consent are caught, as well as invented ones. The maximum penalty is $60,000 for an individual and $120,000 for a body corporate (section 133(1)).
The advertising also must not be false, misleading or deceptive or likely to be, or create an unreasonable expectation of beneficial treatment (section 133(1)(a) and (d)), so patient stories and before-and-after images need checking before use. A regulated health service is a service provided by, or usually provided by, a health practitioner (section 133(4)).
A person does not commit the offence merely because, as part of its business, it prints or publishes an advertisement for another person (section 133(2)). That protects a publisher, but the practice advertising its own service cannot rely on it.
Who owns a customer photo or video?
Usually the person who took it. The author of an artistic work owns the copyright (Copyright Act section 35(2)). A photograph is an artistic work, and its author is the person who took it (section 10(1)). A work made by an employee under a contract of service belongs to the employer (section 35(6)).
So a photo a customer takes and sends in belongs to the customer, and the business needs a licence to use it. A photo taken by a contract photographer for the business’s marketing belongs to the photographer unless the contract assigns it, in writing signed by the photographer (section 196(3)).
Private commissions follow a different rule. Where a person makes an agreement, for valuable consideration, for the taking of a photograph for a private or domestic purpose, and it is taken under the agreement, the commissioning person owns the copyright (section 35(5)). A private or domestic purpose includes a portrait of family members, a wedding party or children (section 35(7)). If the commissioning person made known to the photographer the purpose for which the photograph was required, the photographer may restrain acts comprised in the copyright done otherwise than for that purpose (section 35(5)). The parties can exclude or modify the rule by agreement (section 35(3)).
Video has its own rule. Where a person agrees, for valuable consideration, for another to make a cinematograph film, and it is made under the agreement, the commissioning person owns the copyright, absent an agreement to the contrary (section 98(3)). Otherwise the maker owns it (section 98(2)).
The consent form should also cover reproducing and editing what the customer wrote or said, so the question of who owns a short review never arises.
What should a consent form cover?
What the business will do with the material, in plain words. A good testimonial and image consent form covers:
- Who gives the consent, and who receives it, including any related business or agency.
- The material: quotes, reviews, photos, video and audio, including material the person supplies.
- The uses and channels, such as the website, social media, print and paid advertising.
- How the person will be identified, if at all.
- What edits are allowed, for example none that change the meaning.
- The rights granted: a licence with its period and territory, or an assignment of copyright in material the person created, in writing and signed (section 196(3)).
- A moral rights consent covering specified acts and works (section 195AWA).
- Anything given in return, so it can be disclosed.
- Whether and how consent can be withdrawn, and what happens to material already published.
The moral rights consent matters when the customer is the author, for example of a photo they took. The rights of attribution (section 193(1)) and integrity (section 195AI) are not transmissible by assignment (section 195AN(3)). For works not in films, an act or omission within a written consent genuinely given by the author does not infringe, if the consent relates to specified acts or classes of acts and specified works, which can include future works (section 195AWA).
Where the consent sits in a contract, such as booking terms, a signature carries weight. A person who signs a document known to contain contractual terms and to affect legal relations is bound by them, read or not, absent a vitiating element or a claim for equitable or statutory relief (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [57]). Even so, section 195AWA protects only a consent genuinely given, so fine print is a poor foundation. The film releases and clearances guide covers releases for people filmed at events.
Can photographers use client images in their marketing?
Only with the copyright or a licence, and the consent of the people pictured. For a wedding, family portrait or other private commission, the client who paid owns the copyright unless the agreement says otherwise (sections 35(3), (5) and (7)). A photographer who wants to keep copyright, or to use the images in its own marketing, needs a term to that effect in the booking terms, agreed before the shoot.
Owning the copyright does not settle consent. In Pacific Dunlop Ltd v Hogan [1989] FCA 185, Burchett J said a suggestion of association made by an advertisement the person did not authorise is misleading ([4]). The case concerned a celebrity and was decided under s 52 of the Trade Practices Act 1974, which used the same operative words as ACL s 18. A photographer marketing their services with images of identifiable clients, and particularly of guests who signed nothing, should have written consent or choose images in which people cannot be identified.
Does the Privacy Act apply to customer images?
It can. A business covered by the Privacy Act 1988 (Cth) should treat photos, recordings and testimonials that identify a customer as personal information under the Australian Privacy Principles (APPs). Coverage of smaller businesses turns partly on section 6D. A small business has annual turnover of $3,000,000 or less for the previous financial year (section 6D(1)), and a small business operator carries on one or more small businesses and no business that is not a small business (section 6D(3)).
Some businesses are not small business operators whatever their turnover. They include one that provides a health service and holds health information other than in an employee record, and one that discloses personal information for a benefit, service or advantage (section 6D(4)(b) and (c)). So a small clinic that provides a health service and holds patients’ health information is not a small business operator.
An organisation must not use or disclose personal information it holds for direct marketing, subject to the exceptions in APP 7 (APP 7.1), so a consent form that collects contact details should not double as a marketing sign-up unless it says so plainly. APP 7 does not apply to the extent the Spam Act 2003 or the Do Not Call Register Act 2006 applies (APP 7.8). The data protection and privacy guide covers the detail.
What is the statutory privacy tort?
A cause of action in tort for serious invasions of privacy, in Schedule 2 of the Privacy Act. Its elements are that the defendant intruded upon the plaintiff’s seclusion or misused information relating to the plaintiff; that there was a reasonable expectation of privacy in all the circumstances; that the invasion was intentional or reckless; that it was serious; and that the public interest in privacy outweighs any countervailing public interest (Schedule 2 clause 7(1)).
Material from a private setting, such as a treatment room or a customer’s home, needs express written consent before it is published.
Can a business record a customer’s testimonial or call?
With consent. A person must not knowingly install, use, cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which they are not a party, or to record a private conversation to which they are a party (Surveillance Devices Act 2016 (SA) section 4(1)). The maximum penalty is $75,000 for a body corporate, and $15,000 or imprisonment for 3 years for a natural person.
The prohibition does not apply to a party who records with the express or implied consent of all principal parties, or where recording is reasonably necessary to protect that party’s lawful interests (section 4(2)(a)). Using an excerpt of a recorded sales or support call as a testimonial is the risky case. The safe course is to tell the customer at the start that the call is recorded and why, record their agreement, and get written consent before any excerpt is published. The BPO and call centre agreements guide covers recording by outsourced teams.
A filmed testimonial should still have a written release covering sound and image.
What if a customer withdraws consent?
The consent form should already answer that. A good form says whether consent can be withdrawn, how, and what happens to material already published, such as printed brochures that cannot be recalled.
When a customer asks for material to come down, the practical response is to stop new uses at once, remove it from the website and social channels within a stated time, and record what was removed and when. Continuing to use a person’s image after they have withdrawn risks suggesting an association they no longer authorise (Hogan, Burchett J at [4]).
Good records matter because of the testimonial presumption in section 29(2). A business should keep each signed consent, the original testimonial, the approved version and a note of any reward given. A business covered by the Privacy Act must take reasonable steps to destroy or de-identify personal information it no longer needs for any permitted purpose, unless the law requires it to be kept (APP 11.2).
How similar matters tend to play out
Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. A hair salon reposts a client’s selfie showing a new cut, with a line from her message: “best cut I’ve ever had”. The words are genuine. The photo is another matter: the client took it and owns the copyright (sections 10(1) and 35(2)), and she never agreed to appear in the salon’s marketing. Asking first fixes it.
Middle range. A builder’s website shows ten five-star testimonials. Two were written by its marketing agency from “general feedback”, and one joins comments from two customers. The first two purport to be testimonials (section 29(1)(e)), and the third misrepresents real ones (section 29(1)(f)). All three should come down.
Upper range. A clinic offering services usually provided by health practitioners runs social media ads with patients’ before-and-after photos and quotes, given in return for an undisclosed discount. It also uses excerpts from recorded consultation calls without telling patients. The quotes are testimonials in advertising for a regulated health service (Health Practitioner Regulation National Law (South Australia) section 133(1)(c), maximum $120,000 for a body corporate). Recording private conversations without the consent of all principal parties risks an offence (Surveillance Devices Act 2016 (SA) section 4, maximum $75,000 for a body corporate).
How we act on testimonial and image consents
Our testimonial and image consent lawyers act for businesses collecting and using customer material, and for photographers and videographers. For a business, the aim is material it can use and defend.
| Stage | What happens | What we do |
|---|---|---|
| Set-up | The business plans to collect customer material. | Draft the consent form and review policy, and check health advertising rules. |
| Collection | Material is gathered from customers, staff or guests. | Advise on rewards, review invitations and recording consent. |
| Publication | Material is edited and published. | Check edits and claims against the consent and the ACL. |
| Withdrawal | A customer withdraws consent or complains. | Advise on removal, privacy and records. |
| Dispute | Ownership or use of an image is disputed. | Advise on copyright and moral rights, and negotiate a licence or takedown. |
We cannot promise an outcome, and no lawyer can. We can make sure your consents match how you actually use the material.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Testimonial and image consent case law
None of the decisions below concerned a consent form; each decided a point that applies to testimonials or images.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305 | Federal Court | Masking complainants' email addresses from review invitations was likely to mislead | [213], [216] |
| Pacific Dunlop Ltd v Hogan [1989] FCA 185 | Full Federal Court | An unauthorised suggestion of association is misleading (Burchett J) | Burchett J [2], [4] |
| ACCC v Employsure Pty Ltd [2021] FCAFC 142 | Full Federal Court | The first impression often decides what is represented | [6], [98] |
| Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 | High Court | A signed contractual document binds, read or not | [57] |
Case notes
ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305
A serviced apartment business used a system for inviting TripAdvisor reviews and masked the email addresses of guests who had complained. Moshinsky J held the practices were likely to mislead or deceive under ACL section 18 ([213]), and liable to mislead the public as to the characteristics and suitability for purpose of its services under section 34 ([216]).
Pacific Dunlop Ltd v Hogan [1989] FCA 185
Decided under s 52 of the Trade Practices Act 1974, which used the same operative words as ACL s 18. A shoe advertisement drew on the Crocodile Dundee image without Mr Hogan’s agreement. Burchett J asked whether it conveyed a false message of endorsement ([2]), and said a suggestion of association the person did not authorise is misleading ([4]). The appeal was dismissed with costs.
ACCC v Employsure Pty Ltd [2021] FCAFC 142
The Full Court held that search ads using government agency names as keywords conveyed a government affiliation Employsure did not have ([6]), and said the first impression will often decide what is represented ([98]).
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
The joint reasons stated the general rule that a person who signs a document known to contain contractual terms and to affect legal relations is bound by them, read or not, absent a vitiating element or a claim for equitable or statutory relief ([57]).
Frequently asked questions
Do I need a customer's permission to use their testimonial?
In practice, yes, in writing. A signed consent is evidence the testimonial is real, which matters because a testimonial is taken to be misleading unless evidence is adduced to the contrary (ACL section 29(2)).
Can a business write testimonials for its customers?
Not as the customers’ own words. A false or misleading representation that purports to be a testimonial is prohibited (section 29(1)(e)).
Can a business edit a customer's testimonial?
Lightly, if the consent allows it and the meaning does not change. An edit that changes what the customer said risks a false or misleading representation concerning a testimonial (section 29(1)(f)).
Can a business offer rewards for reviews or testimonials?
Only with care. A testimonial obtained with a reward and presented as unprompted may mislead (sections 18 and 29(1)(f)), so the reward should be disclosed and should not depend on a positive review.
Can health practitioners use patient testimonials?
Not in advertising a regulated health service (Health Practitioner Regulation National Law (South Australia) section 133(1)(c)). The maximum penalty is $60,000 for an individual and $120,000 for a body corporate.
Who owns wedding photos, the couple or the photographer?
The couple, if they paid for them and the contract says nothing different (Copyright Act section 35(5) and (7)). The agreement can exclude or modify that rule (section 35(3)).
Who owns a photo a customer sends to a business?
The customer, as the person who took it (sections 10(1) and 35(2)). The business needs a licence, which a consent form can grant.
Can a business keep using a photo after the customer withdraws consent?
That depends on the consent. Even where it allows continued use, showing a person who has withdrawn risks suggesting an association they no longer authorise, so removal is the safer course.
Is it legal to record a customer call for a testimonial?
Only with consent or another exception. Recording a private conversation with a listening device, even as a party, is an offence unless, for example, all principal parties consent (Surveillance Devices Act 2016 (SA) section 4).
Do I need a testimonial and image consent lawyer?
For any business that uses customer material regularly, and any health practice, yes. A testimonial and image consent lawyer can draft a form and process that match how the business collects and uses material. A free 30-minute consultation will tell you where you stand.