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

IssuePosition in South Australia
Fake testimonialsA 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 courtTaken to be misleading unless evidence is adduced to the contrary (section 29(2)).
Maximum penalty, section 29Body 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 practicesMasking complainants' email addresses in a system for inviting reviews was likely to mislead (ACCC v Meriton at [213], [216]).
Health servicesAdvertising 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 photoGenerally 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 portraitsThe 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 rightsFor works not in films, a written consent covering specified acts and works allows editing and uncredited use (section 195AWA).
Recording callsRecording 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 stepSame-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.

All reviews
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Muhammad Zubair profile picture
Muhammad Zubair
29 October 2026
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Talon Legal is the best law firm in the Adelaide. Dan was able to resolve my case before time, achieving a favourable outcome. I would highly recommend Talon Legal to anyone seeking professional legal assistance. Talon Legal develops effective legal strategies to achieve the best possible outcomes.
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Jessie W profile picture
Jessie W
26 October 2026
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I had a great experience dealing with Danial at Talon Legal. From our initial conversation, he was professional, approachable and genuinely interested in understanding our business and its needs. He took the time to listen, explain things clearly and offer thoughtful, practical advice. I particularly appreciated his patience, honesty and the time he dedicated to our discussions. Although we haven’t engaged the firm for further work at this stage, the experience has left a very positive impression. I would certainly feel confident reaching out to Danial again for any future legal matters. Thank you, Danial, for your time and professionalism. It’s been a pleasure dealing with you!
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Angela Carter profile picture
Angela Carter
12 October 2026
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Was a scary experience, uut thenks to your expertise, i got the best possible outcome.
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S Google
24 September 2026
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Exceeds expectations Dan went above and beyond our expectations to deliver professional, highly detailed and very well thought out information. He included extra documents just to help us out and this was much appreciated.
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S Google
24 September 2026
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Dan went above and beyond our expectations to deliver professional, highly detailed and very well thought out information. He included extra documents just to help us out and this was much appreciated.
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Samin Adit profile picture
Samin Adit
1 September 2026
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Dan was extremely helpful and he was very patient and through and took time explaining me all the process and next step. And he carried a great sense of humor while he spoke and honestly that made it so easy to understand when I was already stressed out.
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Calvin Munatswa profile picture
Calvin Munatswa
24 August 2026
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I’m extremely happy with the service I received from Dan. He was professional, responsive, knowledgeable and genuinely committed to achieving the best possible outcome. I really appreciate the hard work, guidance and support throughout the process. Thank you for doing such a great job. I would highly recommend your services to anyone looking for a reliable and dedicated lawyer.
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Marcelle Ayoubi profile picture
Marcelle Ayoubi
4 August 2026
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Highly recommend Dan! He was prompt, reliable and efficient, with excellent communication throughout the entire process. His knowledge and professionalism gave me confidence, and he achieved a good outcome. Dan took a lot of the stress out of what could have been an overwhelming experience. Thank you, Dan, for all your support and assistance!
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Neb Trivic profile picture
Neb Trivic
24 July 2026
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Very knowledgable, helpfull and got the best outcome hoped for.
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Anton Simdyankin profile picture
Anton Simdyankin
21 July 2026
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Timely quote, responses and overall great experience. 100% Recommend
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Tania Stubberfield profile picture
Tania Stubberfield
16 July 2026
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I highly recommend Talon Legal and especially Daniel Esmaili. During our initial conversation for a driving offence, Dan was incredibly honest and told me that I didn't really need legal representation. He was completely down-to-earth and non-judgmental, reassuring me that people make poor choices sometimes. I felt more at ease and I chose to hire him anyway to avoid the anxiety of a court appearance, and it was the best decision I could have made. He took care of everything from start to finish, appearing in court on my behalf so I didn't have to attend at all. He explained everything clearly without using confusing legal jargon. He was also incredibly thoughtful and personal, asking how my birthday trip away went with family. Thanks to Dan, we got a fantastic outcome with a significantly reduced suspension time and a minimal fine. Dan even went above and beyond by telling me to contact him before I start driving again to double-check that my suspension is fully completed and my licence paperwork is processed correctly. On top of the amazing result, the fees were surprisingly affordable without compromising on performance and integrity. If you want an empathetic, honest, affordable and highly capable lawyer, then Dan's your man. Thankyou again Daniel Esmaili at Talon Legal.
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Bill P profile picture
Bill P
30 June 2026
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We recently engaged Dan Esmaili from Talon Legal to assist our family with a motor vehicle road rule expiation and related court matter. From the very beginning, Dan was professional, clear, and extremely supportive. He took the time to explain the process in a way we could understand, kept us informed throughout, and handled the matter with care and confidence. Most importantly, Dan achieved a successful outcome for our family, which we are very grateful for. We sincerely appreciate his guidance, responsiveness, and dedication. We would highly recommend Dan Esmaili and Talon Legal to anyone needing strong legal support and professional representation.
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Sara Gleeson profile picture
Sara Gleeson
16 June 2026
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I cannot recommend Dan Esmaili (Talon Legal) highly enough. I was extremely worried about the impact a legal problem could have on my future. From the beginning, he was professional, knowledgeable, and supportive. He took the time to explain the legal process, answered all of my questions, and worked tirelessly on my case. Thanks to his expertise and advocacy, I received a result without a conviction being recorded. This outcome has made an enormous difference to my life, and I am incredibly grateful for his dedication and hard work. If you need a lawyer who genuinely cares about their clients and achieves outstanding results, I would not hesitate to recommend Dan.
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Matthew Greenwood profile picture
Matthew Greenwood
16 June 2026
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Thanks Dan for your legal help . You got the best possible outcome , thanks again . Matt
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Caleb Sweeting profile picture
Caleb Sweeting
15 June 2026
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Danial Esmaili is an excellent lawyer whose clear communication style makes navigating legal matters much easier. Professional, approachable and knowledgeable, he takes the time to explain things clearly and provides confidence throughout the process.
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Yousef Al-Yasiri profile picture
Yousef Al-Yasiri
11 June 2026
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Daniel and the team at Talon Legal were truthful, helpful, and left me feeling confident and how they handled my matter. Daniel understood my situation, left me assured, was realistic with me, provided me with the advice or course of action that best suits my sitiation. If I could choose again, I would choose Daniel and the team at Talon Legal with my eyes closed.
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Matthew Morgan profile picture
Matthew Morgan
11 June 2026
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You’d be hard pressed to find someone more knowledgeable than Dan, a lovely guy too.
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Jacob Marcer profile picture
Jacob Marcer
10 June 2026
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Daniel at talon legal was by far the best lawyer I’ve had to deal with he was extremely helpful with explaining his processes and making me feel very comfortable Also achieving a great result on my case Couldn’t recommend Daniel more if I could give more stars I would Thanks again daniel
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Faros Omidvour profile picture
Faros Omidvour
10 June 2026
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Talon Legal is an excellent law firm that I recpmmend without hesitation to anyone who needs responsive and considerate advice and representation.
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Egor Eremeev profile picture
Egor Eremeev
8 June 2026
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I cannot recommend Talon Legal highly enough. From the very beginning, Daniel demonstrated exceptional professionalism, legal expertise, and genuine care for my situation. Daniel took the time to understand my circumstances, explained every step of the process in clear and practical terms, and was always available to answer questions. His attention to detail, strategic thinking, and calm approach gave me confidence throughout the entire matter. What stood out most was Daniel’s commitment to achieving the best outcome while making the process as smooth and stress-free as possible. It is rare to find a lawyer who combines technical expertise with such excellent client service. Thank you, Daniel, and the Talon Legal team for your outstanding support. I would highly recommend Talon Legal to anyone seeking professional, reliable, and results-driven legal representation.
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Kaedehara Kazuha profile picture
Kaedehara Kazuha
4 June 2026
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We recently engaged Talon Legal to assist with drafting reseller agreements for our business, and the experience exceeded expectations. Dan took the time to understand our requirements, commercial objectives, and the practical realities of our industry before providing clear, strategic advice and a tailored solution. His attention to detail, commercial awareness, and ability to identify potential risks resulted in a comprehensive agreement that gave us confidence moving forward. What stood out most was the firm's proactive and innovative approach. Rather than relying on a standard template, Dan offered practical suggestions and considered scenarios we hadn't even thought of, helping create a robust and well-structured agreement. Talon Legal is a progressive firm with a fresh perspective and a strong understanding of commercial law. Professional, responsive, and easy to work with throughout the process. Highly recommended.
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Bec Chapman profile picture
Bec Chapman
22 May 2026
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Talon Legal were exemplary in their service. Dan was concise, thorough and true to the plan. For a small NGO seeking legal advice I can highly recommend :)
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Hussar1522
29 October 2025
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One of the best lawyers in Adelaide My life was being ruined because of a court case that was not true, then it became worse when I have driving charge for driving disqualification and careless driving with an accident that I did not cause. This affect my business and the lawyers protected my business and my life and reputation. They make the charges go away and I get no conviction or criminal record, and do my business contracts terms and conditions perfectly. If you want lawyers that can help you many ways I suggest you go to Talon Legal. I think one of the best law firms in Adelaide for business and criminal and traffic.
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Oldpicker64 profile picture
Oldpicker64
17 August 2025
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Saved me from jail for disqualified driving I can’t thank talon legal enough for what they did to help when I had magistrates court in port adelaide and Elizabeth, lost my licence because I was sick before and had to drive in emergency to help family but police didn’t care. Talon legal helped me with disqualified driving charges in court and saved me from going back to jail this was the one time I liked working with a lawyer. Recommend talon legal for any legal problem.
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J420 profile picture
J420
2 August 2025
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Best criminal lawyers! I hired talon legal to fight a criminal case for me and they got the charge dropped. Daniel was amazing in handling my case. He actually cared about my case and me as a person. I felt really supported and I am glad I got talon legal for my court case. Best criminal lawyers in Adelaide that I spoke to.
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James Aveno profile picture
James Aveno
2 August 2025
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Excellent business and startup lawyers Talon Legal was incredible to work with and delivered outstanding value for money and expertise. I went into my initial meeting expecting to receive some basic information instead I was blown away by their depth of knowledge across multiple domains. I was in the process of founding a startup business in Adelaide, and explained my goal of expanding interstate and eventually internationally. The lawyer I spoke to was across contracts, terms and conditions, intellectual property protection and licensing, brand consolidation, risk minimisation and business structures and compliant advertising. I was really impressed however by their use of ingenious tools that aren’t really the domain of lawyers at least from what I’ve seen before. Daniel in particular was a bit of wizard. He walked me through how something called OSINT could be used for brand consolidation and was very transparent about the use of some of their document automation tools, and this reflected in the speed and value they provided. I really felt like I finally am able to work with a law firm that can help me with every stage of my business and was genuinely curious about what what I wanted to achieve. Even after the services were provided, Talon Legal was proactive in checking in with me to ensure my business was prospering. I have sent my friends and other entrepreneurs to them and every single one was very happy.
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James A profile picture
James A
2 August 2025
Wordofmouth star 1Wordofmouth star 2Wordofmouth star 3Wordofmouth star 4Wordofmouth star 5Trustindex verifies that the original source of the review is Word of mouth.
Excellent commercial and business lawyers! Talon Legal was incredible to work with and delivered outstanding value for money and expertise. I went into my initial meeting expecting to receive some basic information instead I was blown away by their depth of knowledge across multiple domains. I was in the process of founding a startup business in Adelaide, and explained my goal of expanding interstate and eventually internationally. The lawyer I spoke to was across contracts, terms and conditions, intellectual property protection and licensing, brand consolidation, risk minimisation and business structures and compliant advertising. I was really impressed however by their use of ingenious tools that aren’t really the domain of lawyers at least from what I’ve seen before. Daniel in particular was a bit of wizard. He walked me through how something called OSINT could be used for brand consolidation and was very transparent about the use of some of their document automation tools, and this reflected in the speed and value they provided. I really felt like I finally am able to work with a law firm that can help me with every stage of my business and was genuinely curious about what what I wanted to achieve. Even after the services were provided, Talon Legal was proactive in checking in with me to ensure my business was prospering. I have sent my friends and other entrepreneurs to them and every single one was very happy. Approximate cost: $4500
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DP123 profile picture
DP123
12 July 2025
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Clear advice in a very stressful time I was in a very stressful situation and Talon Legal fixed my problem - now my stress is gone! Very professional, excellent communication, accessible and fast. Thank you for everything.
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Slavi77 profile picture
Slavi77
12 July 2025
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They won my hardship appeal Was about to lose my licence and Talon Legal got it back. Made a promise and kept it. This is what a lawyer should be like. Helped me with my driving disqualification and other driving offences. Very prepared and explaining things very good so I could understand them easily.
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Emir profile picture
Emir
2 July 2025
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Very good criminal lawyer They were honest and did what they said they would do and told me what to expect it was like following a map and I felt safe because I know what to expect very happy with the experience Talon. If I need lawyer again I will come back.
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Samsun profile picture
Samsun
28 June 2025
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Got the best result for me Easy to deal with and spoke to me in normal English, explained everything really good to me, didn’t go over agreed budget to help with my case and communicated all the time with me, never kept me waiting and very responsive to my questions, had direct access to my lawyer anytime I needed. Got very good result for my case for drinking and driving, disqualified driving, demerit points and provisional driver licence condition
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Rogue33 profile picture
Rogue33
26 June 2025
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Very good experience best money ever spent on a lawyer Professional, friendly and fixed fee service. I had some charges in court in Adelaide and Talon Legal completely picked apart the case against me. Charges were removed and I got my licence back too. Cant recommend them strongly enough. Really easy to work with and friendly. Thanks for wining my licence appeal and getting the drink driving charges removed.
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Riggo7 profile picture
Riggo7
24 June 2025
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Saved my drivers license Can’t thank the team enough at Talon Legal for helping me keep my drivers license. They were very knowledgeable and took the time to explain everything to me every step of the way. If it wasn’t for their excellent representation in court I would have lost my license. They left no stone unturned. Highly recommend.
Posted on Word of mouth Word of mouth
Karen R. profile picture
Karen R.
24 June 2025
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Best lawyers for traffic offences in adelaide Really appreciate Talon Legal’s help to keep my license, thank you so much to the team. Professional, responsive and compassionate service from everyone at the office and excellent outcome. Would definitely recommend. Approximate cost: $2800
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Les A. profile picture
Les A.
23 June 2025
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Excellent traffic lawyers I owe them my life and job words are not enough to say how thankful i am for the help they gave me when i was going to lose the driver licence in magistrates court because of drink driving and drug driving. Approximate cost: $3000
Posted on True Local True Local
Jordan profile picture
Jordan
22 June 2025
Truelocal star 1Truelocal star 2Truelocal star 3Truelocal star 4Truelocal star 5Trustindex verifies that the original source of the review is True Local.
Best Lawyers! Absolutely first-class service from Talon Legal. I had a complicated traffic matter and wasn’t sure where to turn. From the first phone call, they were professional, understanding, and gave me clear advice without the legal jargon. On the day of court, they were calm and prepared and the result spoke for itself. I’m so grateful for their help and wouldn’t hesitate to recommend them to anyone needing help with a traffic offence.
Posted on Word of mouth Word of mouth
S A. profile picture
S A.
17 June 2025
Wordofmouth star 1Wordofmouth star 2Wordofmouth star 3Wordofmouth star 4Wordofmouth star 5Trustindex verifies that the original source of the review is Word of mouth.
Brilliant traffic lawyers in adelaide Helped me get my licence back in the magistrates court after I applied for a licence appeal because I breached my provisional conditions. Made it straightforward and helped me stay calm. Treated me like a normal person and was very compassionate. You saved my job legends Approximate cost: $1800
Posted on True Local True Local
SA profile picture
SA
16 June 2025
Truelocal star 1Truelocal star 2Truelocal star 3Truelocal star 4Truelocal star 5Trustindex verifies that the original source of the review is True Local.
Successful drivers licence appeal! Made the process really easy for me to understand and helped me appeal my licence in the magistrates after it was disqualified for breaching a licence condition. Thank you legends, I would have been stuffed if I lost my licence without you guns!
Posted on True Local True Local
TK profile picture
TK
5 April 2025
Truelocal star 1Truelocal star 2Truelocal star 3Truelocal star 4Truelocal star 5Trustindex verifies that the original source of the review is True Local.
Best traffic lawyers in Adelaide I came across talon legal when I was looking for a law firm in Adelaide to represent me for traffic offences while visiting from overseas. They were very professional, fast, friendly and down to earth. Dan handled my mater and got me a very good outcome at a fixed cost.

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.


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 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.

StageWhat happensWhat we do
Set-upThe business plans to collect customer material.Draft the consent form and review policy, and check health advertising rules.
CollectionMaterial is gathered from customers, staff or guests.Advise on rewards, review invitations and recording consent.
PublicationMaterial is edited and published.Check edits and claims against the consent and the ACL.
WithdrawalA customer withdraws consent or complains.Advise on removal, privacy and records.
DisputeOwnership 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.

CaseCourtPrinciplePinpoint
ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305Federal CourtMasking complainants' email addresses from review invitations was likely to mislead[213], [216]
Pacific Dunlop Ltd v Hogan [1989] FCA 185Full Federal CourtAn unauthorised suggestion of association is misleading (Burchett J)Burchett J [2], [4]
ACCC v Employsure Pty Ltd [2021] FCAFC 142Full Federal CourtThe first impression often decides what is represented[6], [98]
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52High CourtA 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.


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