Australian Consumer Law and Misleading and Deceptive Advertisements

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As a consumer you need to be aware and cautious of what you are purchasing, the claims about the good or service you are receiving and the rights you have as a consumer in Australia. Here you will learn all about  Australian consumer law, the rights you have as a consumer and the effect of misleading and deceptive advertisements where we introduce a case study that focuses on misleading and deceptive advertisements.

What is Australian Consumer Law (ACL)?

Australian Consumer Law (ACL) applies to all states and territories and to all businesses operating in Australia. It protects both consumers and businesses in areas such as:

  • Unfair contract terms;
  • Guaranteeing consumer rights when buying goods and services;
  • It is a product safety law and is an enforcement system;
  • ACL covers unsolicited consumer agreements covering door-to-door sales and telephone sales;
  • It includes simple national rules for lay-by agreements; and
  • Penalties, enforcement powers and consumer redress options (consumer law, 2020)

ACL is a law administered by the Australian Competition and Consumer Commission or more commonly known as its abbreviation, the ACCC, alongside state and territory consumer protection agencies and can be enforced in courts and tribunals.

So what does the ACCC actually do? 

In simple terms, the ACCC takes action to ensure Australian markets are functioning properly, also protecting competition within markets, improving consumer welfare and they aim to stop any anti-competitive or harmful conducts against consumers.

Now let’s get into the part most people are here for!

Consumer Rights

The Rights of a Consumer

ACL protects consumers in multiple areas. These areas include:

  • Unfair contract terms, covering standard form consumer contracts
  • Consumer rights when buying goods and services
  • Product safety
  • Unsolicited consumer agreements covering door-to-door sales and telephone sales
  • Lay-by agreements (Consumer Law Australia) 

Although ACL protects consumers in all of the areas above, it also requires all businesses to provide consumer guarantees for most of the goods and services they sell. This is where many consumers get confused when it comes to their rights and why there may be some misunderstandings. 

What are consumer guarantees? And what is the difference between consumer rights and consumer guarantees?

Consumer guarantees are rules that cover goods and services bought by consumers under ACL and are in place to ensure businesses issue a remedy or solution to their consumers. When you buy a product (good or service) there is a guarantee that the product will perform in the way it was intended. If the product does not perform in the way it was advertised you have consumer rights. 

Consumer guarantees under ACL require Australian businesses to install a policy which often comes in the form of a refund, exchange or a credit note type of policy for faulty/damaged or change of mind on goods or services. It is the business’ way of issuing a solution to its customers. It is under your consumer rights to be offered a solution if you purchase a product which was falsely advertised or has a form of fault.

Consumer guarantees and consumer rights are in place to support both consumers and businesses. Consumer guarantees are set in place in order to resolve any issues that may arise when a consumer purchases a product from a business. In saying this, consumer guarantees cover businesses and consumer rights cover customers who have purchased products that have had some sort of fault.

Misleading and Deceptive Advertisements

As a consumer, it is very important to be aware of advertisements, especially with what the business claims they provide in their services, or the claims the business makes about their goods. A misleading and/or deceptive claim  from a good or service could harm or cause injury to a consumer if important information is accidentally or purposefully left out. It is also important for consumers to also check claims for example through checking reviews or services, or checking the ingredients list before consuming the food item to ensure you are receiving what it claims to provide.

What is a misleading and deceptive advertisement?

An advertisement is misleading if it includes false, misleading or deceptive information. An advertisement can also be considered misleading if important information that is needed to make an informed decision is left out.

It is very important to note the forms of advertisements and examples of misleading and deceptive advertisements in order to pick out errors in advertising by other businesses.

Forms of advertisements include:

  • TV commercials
  • Radio commercials
  • Posters/billboards
  • Social media posts
  • In-store signage
  • Catalogues

So now let’s take a look at a case study that uses all the concepts mentioned above.

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] 

In 2014, the ACCC had taken Coles Supermarkets Australia Pty Limited (Coles) to federal court claiming that they were involved in misleading conduct in the form of misleading and deceptive advertising. This action was created due to the discovery of false slogans that Coles bread was being “Baked Today, Sold Today”, “Freshly Baked”, “Baked Fresh”, “Freshly Baked In-Store” and “Coles Bakery”. This action was taken against Coles because it was discovered that some of the breads Coles were selling were coming into the store par-baked. This meant that they were being made, then half baked and frozen at a different location from where the bread would arrive to then be baked once more before going onto shelves, sold as “freshly baked”. 

The federal court discovered that these claims were falsely advertised and saw that there were misleading and deceptive advertising claims on their par-baked bread products as the claims had broken Section 18(I) of ACL that stated: “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive” (ACL). The ACCC argued that Coles had also broken Section 29(I)(a) of ACL which states “A person must not in trade or commerce, in connection with the supply or possible supply of goods or services, or in connection with the promotion by any means of the supply or use of goods or services: (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use”(ACL). It was also argued that Coles had broken Section 33 of the ACL which provides that “A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, manufacturing process, the characteristics, the suitability for their purpose, or the quantity of any goods” (ACL).

In a statement, Coles said it did not “deliberately set out to mislead anybody” but accepted “we could have done a better job explaining how these products are made”.

It was concluded that Coles had in fact broken Section (18)(I), Section 29(I)(a) and Section (33). This resulted in Coles being fined a penalty of $2.5 million dollars for misleading marketing campaigns claiming that their bread products were “baked today” or “freshly baked in-store” when in fact they were partially baked off site and not made fresh in store as the claims suggested. It was also ordered that Coles post a notice on their website and in their stores for a period of 90 days admitting to false statements of their Coles bread. All signage was ordered to be removed immediately across all stores that made reference to Coles bakeries or their “fresh bread” and a ban of 3 years was set stating that Coles was not allowed to advertise their bread products. In this case, Coles was very lucky that they did not cause any harm to any of their customers who had consumed their breads.

As we have seen above with the Coles case study, as a business you must be cautious of the wording you use to promote your goods or services. It is also very important to cross check facts and promotions before submitting them to the public, because as seen with the Coles case, Coles had stated that they did not deliberately intend to mislead or deceive their customers, but due to improper reviewing of their marketing campaigns, they were found to be misleading and deceiving their customers and heavily fined. Due to this, Coles lost the trust of their loyal customers. It is also very important to be aware as a consumer of the products you purchase, ensuring you read the fine print and of course the label and it’s claims. By doing this you are able to be assured and satisfied with your purchase also avoiding any harm you could cause to yourself or others in the form of a reaction if consumed or harmed, in the form of improper use of your purchase.

References

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2014] FCA 634, https://jade.io/article/336796?at.hl=coles+fresh+bread

Australian Competition & Consumer Commission 2020, “About the ACCC”, Australian Competition & Consumer Commission, Canberra, viewed 26th of March 2020, https://www.accc.gov.au/about-us/australian-competition-consumer-commission/about-the-accc#our-purpose

Australian Competition & Consumer Commission 2020, “Consumer Guarantees”, Australian Competition & Consumer Commission, Canberra, viewed 26th of March 2020, https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees

Australian Competition & Consumer Commission 2020, “Consumers’ Rights & Obligations”, Australian Competition & Consumer Commission, Canberra, viewed 26th of March 2020, https://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations

Australian Competition & Consumer Commission 2020, “False or Misleading Claims”, Australian Competition & Consumer Commission, Canberra, viewed 26th of March 2020, https://www.accc.gov.au/consumers/advertising-promotions/false-or-misleading-claims#false-or-misleading-advertising

Australian Consumer Law 2020, “The Australian Consumer Law”, Australian Consumer Law, Canberra, viewed 26th of March 2020, https://consumerlaw.gov.au/australian-consumer-law

Stephen, C, & Professor, PC 2015, “Australian Consumer Law: Commentary & Materials”, Thomson Reuters (Professional) Australia Pty Limited, Sydney., Chapter 3, pg.91, chapter 5, pg. 230, chapter 8 pg.347-348, Available from: ProQuest Ebook Central. [accessed 1st of May 2020].

Wells, J 2014, “Coles banned from advertising frozen bread as ‘Freshly Baked'”, [online], ABC News, 29th September, viewed 26th of April, 2020, https://www.abc.net.au/news/2014-09-29/coles-banned-from-advertising-frozen-bread-as-freshly-baked/5776650

Copyright and Plagiarism

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This week in BCM113 our class activity was to research a case and present our findings but before I do, I wanted to simply define copyright and plagiarism.

Copyright “refers to the legal right of the owner of intellectual property” (Investopedia 2020). It is essentially the author’s right to copy as they have the exclusive rights to reproduce the work.

Plagiarism is “to steal or pass (the ideas or words of another) as one’s own: use ( another’s production) without crediting the source (Mariam Webster).

So now that we have identified this weeks topic and understood what it is all about, I can get into the case I was given to study.

The case of PETA v Slater is an interesting one when discussing copyright. PETA brought Slater a suit claiming that Slater had infringed a monkey’s copyrights. This suit was brought against Slater after Slater had published a book named “Wildlife Personalities” in 2014, which featured a selfie a monkey had taken in 2011 using Slater’s camera while he was in Indonesia. PETA were claiming that the monkey named Naruto should have the copyright to those photos as he had taken them.

PETA argued on behalf of Naruto the Crested Macaque Monkey, that Naruto should have the ownership of those smiling selfies he had taken back in 2011 and should not have been published in the book. Slater then argued that he had valid copyright claim as he had left is camera in such a position that a selfie image may appear to have been taken by Naruto. Slater also went further to claim that PETA had no proof that PETA was talking about the same monkey featured in the image.

The case was settled in September of 2018. A panel of 3 judges concluded that PETA lacked ‘next friend” status to bring a lawsuit on the behalf Naruto and stated that in general, animals do not have standing to sue under the Copyright Act. Therefore Slater had won the case against PETA.

I quite enjoyed getting to learn about this weeks topic and this particular case.

-Olivia

Monkey-selfie lawsuit finally ends: Court affirms adorable macaque ...
David Slater’s image

References

Jeong S, The Verge 2018, Appeals court blasts PETA for using selfie monkey as ‘an unwitting pawn, viewed 12th of April 2020, https://www.theverge.com/2018/4/24/17271410/monkey-selfie-naruto-slater-copyright-peta

Kenton, W, Investopedia 2020, Copyright, Viewed 12th of April 2020, https://www.investopedia.com/terms/c/copyright.asp

Livni E, Quartz 2018, A monkey lost his copyright case—but made strides toward getting animals more legal rights, viewed 12th of April 2020, https://qz.com/1261828/the-monkey-selfie-case-demonstrates-nonhumans-can-make-constitutional-claims/

Mariam-Webster 2020, Plagiarize, viewed 12th of April 2020, https://www.merriam-webster.com/dictionary/plagiarize

PETA, About PETA Australia, viewed 12th of April 2020, https://www.peta.org.au/about/

Understanding the Australian Legal System

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This past week in BCM113, we began learning about the Australian Legal System, or at least we tried to understand it. Personally I find legal terminology and just the whole concept of laws difficult to comprehend. I never took legal studies during high school, simply because I never enjoyed any of it. So this is me trying to simplify what we were taught so that you reading this post will be able to understand what we learnt in class in simple terms.

The Sources of Law

If you are like me and you never really understood governments and laws, the first thing you should know is that there are 2 sources of laws- Statute law and Common Law. Statute Law is legislation that has been passed by state, territory and federal governments. In other words statute law has been approved by state, territory and the federal government. Common Law on the other hand is decided by judges in court.

The Categories of Law

Before you ask, YES there is a difference between sources of law and the categories of law. The 2 categories of law in Australia are divided into Criminal Law and Civil Law. Criminal Law can be remembered as an offence that has been committed against the state. It deals with crime and legal punishment against criminal offences e.g. murder, a highly criminal offence that is punishable by law. Civil Law deals with disputes between individuals or organisations or even against one another. An example of civil law is a breach in a contract or damage to property.

What is Contempt of Court?

Contempt of court can be simply defined as an act that has the intention to interfere with authority, performance or dignity of the courts or those who participate. Contempt laws are also separate from other kinds of laws. Rudeness and discourtesy by legal practitioners will not be considered contempt.

What are Injunctions and Suppression Orders and How do they fit into contempt laws?

An injunction is a court order that directs a person to do or not to do something specific while a suppression order stops any information about a case being disclosed. Suppression orders ensure a fair trial is held and helps protect defendants and witnesses from being harassed by the media during a trial. Injunctions fit into contempt laws as they lead to disobedience of contempt Suppression orders fit into contempt law under ‘sub-judice’ through the publications of material that could prejudice a trial or potentially interfere with the administration of justice, scandalising the court through any publication that could undermine public confidence in the court, revealing any juror’s deliberation or revealing closed court details, improper behaviour or again disobedience in court can all lead to suppression orders.

Although I have no real prior knowledge about the Australian Legal System, I am truly excited to see what else I learn in this class.

-Olivia

Reference List

Burrows, M. 2018, What is an Injunction?, [online], Dundas Lawyers, viewed 18th of March, https://www.dundaslawyers.com.au/what-is-an-injunction/

Overview of the Australian Legal System (n.d.), viewed 18th of March 2020, https://www.dlsweb.rmit.edu.au/Toolbox/legal/OFFICE/T00/T00_A/T0_LESY.html

The News Manual, 2019, Contempt and court reporting in Australia, viewed on 18th of march 2020, http://www.thenewsmanual.net/Resources/medialaw_in_australia_03.html