Australian Consumer Law prohibits conduct that is misleading or deceptive, or likely to mislead or deceive, in trade or commerce. The rule applies not only to consumer transactions, but to many business-to-business dealings as well.
How Misleading Conduct Arises
Common examples in a commercial context include:
- Overstating the performance or capacity of goods or services
- Providing incomplete information that creates a false impression
- Misrepresenting financial performance or key figures in a sale of business
- Making promises about future matters without reasonable grounds
- Confusing branding or marketing that suggests a false connection
Conduct is usually judged as a whole, in the context of the particular audience, rather than by focusing only on individual words.
Who Can Bring a Claim
Businesses that have suffered loss because of misleading conduct may be able to seek:
- Damages
- Orders cancelling or varying contracts
- Injunctions preventing further misleading conduct
Claims may be brought in various state or federal courts and tribunals, depending on the amount and nature of the dispute.
Defending Allegations
Businesses faced with allegations of misleading or deceptive conduct should:
- Preserve all marketing materials, correspondence and notes
- Review what was actually said or written, rather than relying on memory
- Consider whether any disclaimers, terms or corrections were given
- Assess causation – whether the conduct actually caused the loss claimed
Good record-keeping, clear contracts and written qualifications can assist in defending claims.
Practical Risk Management
To reduce the risk of breaching the law:
- Ensure advertising and proposals are accurate and capable of proof
- Train staff on how to describe products and services
- Avoid broad statements such as “guaranteed results” unless they can be honoured
- Take care with comparisons to competitors
- Review standard documents regularly
How Scherini Lawyers Can Help
We advise Melbourne businesses and individuals both bringing and defending claims for misleading or deceptive conduct. Our work includes reviewing marketing materials, drafting contracts and running litigation where necessary.
If you need advice in relation to potential misleading conduct, call 03 9961 3149 or email info@scherinilawyers.com.au.
This article contains general information only and does not constitute legal advice. Please obtain professional advice before acting.
