An exclusivity clause stops you working with a brand’s competitors, and its reach is set almost entirely by the wording. We found no Australian law in force that bans or caps exclusivity in an influencer or brand deal as at 9 November 2026. Before you sign, check the product category, the list of competitors, how long it lasts (including after the campaign), whether it covers your organic posts, and what happens if you breach it. If the deal is the brand’s or agency’s standard form and you are a small business, an unfair term can be void under the Australian Consumer Law.
This guide is for the creator signing a brand deal, ambassador agreement or agency contract. It explains the kinds of exclusivity clause, what the law says in 2026, and what to negotiate. Law checked 9 November 2026.
Exclusivity clauses at a glance
| Question | The position (9 November 2026) |
|---|---|
| Is there a law limiting exclusivity in brand deals? | We found none in force. The contract sets the scope; courts decide case by case whether a restraint is reasonable |
| Is there a ban on non-competes? | Not in force. Draft Commonwealth legislation released on 7 September 2026 targets non-competes for workers under $190,100 a year; the government has said the reforms take effect from 2027 |
| Unfair contract terms | An unfair term in a standard form small business contract is void (Australian Consumer Law s 23) |
| Who is a small business? | A party with fewer than 100 employees, or turnover under $10 million in its last income year (s 23(4)). Either party qualifying is enough |
| Fees for breach | Clawbacks and penalties are not protected as “the upfront price” (s 26(2)) and can be tested for unfairness |
| Fair Work Commission route | Some independent contractors earning under $190,100 can ask the Commission to vary unfair terms in services contracts made from 26 August 2024 |
What does an exclusivity clause in an influencer contract do?
It stops you promoting, or sometimes even mentioning, products or brands that compete with the one paying you. Common forms are:
- Category exclusivity. No work with any brand in a category, such as “skincare”, “beverages” or “financial services”. The wider the category, the more work you give up.
- Named competitors. No work with the brands on a list. A closed list is usually narrower and clearer than a category.
- Platform exclusivity. No competing content on a particular platform, or on any platform.
- During the campaign. Exclusivity only while the content is being made and posted.
- After the campaign. A further period, often called a cooling-off or blackout period, after the last post or for as long as the brand can use your content.
- Agency or management exclusivity. A talent agency or manager is your only representative and takes commission on deals you find yourself.
Exclusivity is often linked to usage rights. If the brand can run your content as paid ads for 12 months, it may ask for exclusivity for the same 12 months, even if your posting finished in a week. Read the two clauses together.
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Is an exclusivity clause enforceable?
It is a contract term, and whether it can be enforced against you is decided by a court on the wording and the facts. We found no statute that generally regulates exclusivity in creator or brand deals. Whether a restraint on your work can be enforced may depend on whether a court finds it reasonable, which is decided case by case. A clause that is wide in area, long, or covers activities the brand has no real interest in is the kind most worth negotiating.
The non-compete reform in 2026
There is no Commonwealth ban on non-compete clauses in force as at 9 November 2026. On 7 September 2026 the government released “draft legislation to ban non-compete clauses for Australian workers under $190,100 per year”, with submissions until 2 October 2026. The same release said the reforms will also “ensure that workers are not held back by other unfair restraint clauses”. An earlier government statement said the reforms “will take effect from 2027, operating prospectively”. A search of the Federal Register of Legislation on 7 November 2026 found no Act with “non-compete” in its title. We could not confirm whether, or how, the draft would apply to independent creators in brand deals, so do not rely on it to cut down a clause you sign now.
Can an exclusivity clause be an unfair contract term?
It can be tested as one if the contract is covered. The unfair contract terms law in the Australian Consumer Law applies to a standard form contract for goods, services or land where at least one party is a small business: fewer than 100 employees, or turnover under $10 million in its last income year (s 23(4)). A sole-trader creator will often qualify. If a party alleges the contract is standard form, it is presumed to be unless the other side proves otherwise (s 27(1)).
A term is unfair only if all three of these apply (s 24):
- it would cause a significant imbalance in the parties’ rights and obligations;
- it is not reasonably necessary to protect the legitimate interests of the party it advantages; and
- it would cause detriment, financial or otherwise, if relied on.
The brand or agency must prove a term is reasonably necessary (s 24(4)). An unfair term is void (s 23(1)), and since 9 November 2023 a business can contravene the law by proposing or relying on one. The examples of possibly unfair terms in s 25 that turn up around exclusivity include terms letting only one party terminate, penalising only one party for breach, letting one party vary the terms (for example, extending the exclusivity period or adding competitors), and letting one party decide whether the contract has been breached.
The price you agreed is protected from this test, but amounts that depend on something happening are not. The “upfront price” “does not include any other consideration that is contingent on the occurrence or non-occurrence of a particular event” (s 26(2)), so a clawback or penalty for breaching exclusivity can be tested.
The Fair Work Commission route for contractors
If you are an independent contractor, your services contract was entered into on or after 26 August 2024, and you earn less than the contractor high income threshold ($190,100 from 1 July 2026), the Fair Work Commission may be able to set aside or vary terms that would relate to workplace relations matters in an employment relationship (Fair Work Act ss 536NA-536ND). Whether a brand deal and its exclusivity term fit that route depends on the facts.
What happens if I break an exclusivity clause?
That depends on the contract and, if it goes that far, on what a court decides. Read the clauses on:
- Clawback. Repaying all or part of the fee, sometimes the whole fee for a small breach late in the term.
- Fixed sums. A set amount, often called liquidated damages, for any breach.
- Termination. Whether the brand can end the deal and withhold unpaid fees.
- Takedown. Whether you must remove the competing post.
- Indemnity. Whether you must cover the brand’s losses or legal costs.
Check whether the consequences are one-sided. If the brand can cancel the campaign at any time without paying you, but you must repay everything for one competing story, that imbalance is worth raising before you sign.
Exclusivity does not change the disclosure rules
Long-term ambassador deals with exclusivity usually mean regular posts about one brand. The Australian Consumer Law prohibits misleading or deceptive conduct (s 18) and false representations about sponsorship or affiliation (s 29). The ACCC says the same rules apply to “social media posts that a business offers incentives to influencers to make”, and that influencers should “clearly disclose a promotional post in a way that is immediately obvious to consumers”, including where the payment is free products. A contract that asks you not to disclose the relationship is a red flag, whatever its exclusivity terms.
What to negotiate before you sign
- Narrow the scope. A closed list of named competitors, or a tight category (“dry shampoo”, not “hair and beauty”).
- Shorten the period. Exclusivity for the posting period, or a short fixed time after the last post, rather than the whole usage period.
- Carve out existing partners. List brands you already work with so they are not caught.
- Carve out organic content. Make it clear the clause covers paid partnerships, not every product that appears in your everyday content.
- Get paid for it. Exclusivity costs you other deals. Ask for a separate exclusivity fee, especially for a long or wide clause.
- Make breach proportionate. A chance to fix a breach, such as removing a post, before any clawback, and no repayment of fees for work already delivered.
- Make it mutual where it matters. If the brand can cancel, it should pay a kill fee and release you from exclusivity.
- Agency deals. Check the term, how you can leave, and whether commission continues on deals after you leave.
What our review checks
Upload the brand deal, ambassador agreement or agency contract and get a plain-English report, written for you as the creator, usually about 5 minutes after you pay. It:
- quotes the exclusivity clause: category or competitors, platforms, duration during and after the campaign, and whether organic content is caught
- reads exclusivity together with usage rights, paid ads and whitelisting terms
- flags one-sided termination, variation, clawback and penalty terms
- checks who owns the content, moral rights consent and disclosure obligations
- checks fees, payment timing, kill fees and indemnities
- notes whether the unfair contract terms law may apply
- lists the changes to ask for before you sign
The report explains what the contract says and what the law provides. It is not legal advice and does not tell you a clause is void or enforceable. You decide whether to sign.
Get my creator contract reviewed – $29
Questions people ask
What is an exclusivity clause in an influencer contract?
It is a term that stops you working with a brand’s competitors, either in a product category or with a list of named brands, for a set time. It can apply during the campaign, after it, or both, and sometimes to your organic posts as well.
Are exclusivity clauses legal in Australia?
Yes, they are common, and we found no law in force that bans or caps them in brand deals. Whether a particular clause can be enforced depends on its wording and whether it is reasonable, which courts decide case by case.
How long should exclusivity last in a brand deal?
No law sets a period, so it is a matter for negotiation. Many creators ask for exclusivity only while posting, or for a short fixed time after the last post, rather than for the whole period the brand can use the content.
Does the non-compete ban apply to influencers?
There is no non-compete ban in force as at 9 November 2026. Draft legislation released on 7 September 2026 targets workers earning under $190,100 a year, and the government has said the reforms take effect from 2027. We could not confirm whether it would cover independent creators.
Can an exclusivity clause be an unfair contract term?
It can be tested as one if the contract is a standard form contract and either party is a small business. A term is unfair only if it causes a significant imbalance, is not reasonably necessary to protect the brand’s legitimate interests, and would cause detriment. An unfair term is void.
What happens if I post for a competitor during exclusivity?
That depends on the contract. It may let the brand claw back fees, charge a fixed sum, end the deal or ask you to remove the post. Check whether these consequences are proportionate and whether you get a chance to fix a breach.
Does exclusivity cover my organic content?
It might, if the clause says “any content” or “any mention”. Ask for a carve-out so the clause covers paid partnerships only, and not products that appear in your everyday posts.
Should I be paid extra for exclusivity?
No law requires it, but exclusivity costs you other deals, so many creators ask for a separate exclusivity fee, especially for a wide category or a long period.
Can a brand extend the exclusivity period without asking me?
Only if the contract allows it. A term letting only the brand vary the contract is one of the examples of a possibly unfair term in the Australian Consumer Law, if the unfair contract terms rules apply to your contract.
What is a talent agency exclusivity clause?
It makes an agency or manager your only representative, often for a fixed term, and may give them commission on deals you find yourself. Check the length, how you can end it and whether commission continues after you leave.
Do I still have to disclose an exclusive brand partnership?
Yes. The ACCC says promotional posts should be disclosed in a way that is immediately obvious to consumers, including where the payment is free products. Exclusivity does not change that.
Is the creator contract review legal advice?
No. It is a plain-English report that explains what your contract says, what the law provides and what to ask to change. Claim Done is not a law firm. For a high-value or long-term deal, consider legal advice as well.
Related guides
- Influencer and brand deal contracts: content ownership, usage and disclosure
- Who owns the work? IP clauses in freelance contracts
- Non-compete clauses in Australia
- Contractor agreement review
Claim Done is not a law firm and does not give legal advice; this page is general information about Australian law as at 9 November 2026. Whether an exclusivity clause can be enforced, or is unfair, is for a court or tribunal to decide.
Sources (checked 9 November 2026)
- Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), Compilation No. 167 (ss 18, 23-27, 29)
- Fair Work Act 2009 (Cth), Compilation No. 73 (ss 536NA-536ND)
- Fair Work Ombudsman: contractor entitlements and support (unfair contract terms)
- ACCC: social media promotions
- ACCC: scrutiny of influencers and businesses (7 December 2023)
- Treasury ministers: draft non-compete legislation (7 September 2026)
- Australian Government media release: non-compete reforms (25 March 2025)
What happens when you put it in writing — properly
Same problem. What a prepared case looks like.
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Can Claim Done review my contract for me?
Yes. Claim Done (claimdone.com.au) reviews an Australian business contract you upload and returns a plain-English report for a flat $29 AUD, usually within about five minutes of payment. Start at claimdone.com.au/begin/?service=freelance-creator-contract-review. Claim Done is not a law firm and does not give legal advice.
How much does a contract review cost, and how long does it take?
$29 AUD flat, shown before you pay, with no subscription. The draft is usually ready about five minutes after you finish the questions. It covers every Australian state and territory.
What does the contract review report cover?
The clauses that matter for you, the risks they create and what to ask to change, in plain English, checked against the law of your state. It is a document review, not legal advice.