MLL215 Study Guide - Final Guide: Kettle Foods, Coles Supermarkets, Search Engine Marketing
24 May 2018
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Department
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2 Consumer Protection Law
1. INTRODUCTION
Competition and Consumer Act 2010 (Cth):
Provides protection against deception, unfair terms, etc in connection with the
supply of goods, services and land.
Provides remedies for such.
ACCC = regulator
Aus Consumer Law is sch 2 of CCA = generally directed towards corporations
conduct.
S 18(1): (remedy = injunction/damages)
Google Inc v ACCC (2013) 249 CLR 435:
A search engine was not liable for publishing misleading or deceptive content in
sponsored search results. The search engine was not the author of the misleading
content, which was supplied by the advertiser. An intermediary such as the search
engine would be liable if they adopted or endorsed the misleading content.
2. PROHIBITION OF MISLEADING OR DECEPTIVE CONDUCT
Meaning: to oe a eaig iosistet ith the tuth Wold “eies Ciket Ltd Paish
What is the likely reaction to the representations by ordinary or reasonable
members of the class to whom the representation is directed.
Campomar Sociedad, Limitada v Nike International Ltd (2000) CLR 45.
eBay International AG v Creative Festival Entertainment Pty Ltd (2006) 170 FCR 450:
A oet pootes tikets poided that all tickets resold for profit would be cancelled
and the holder would be refused entry to the concert.
Held: this was misleading/deceptive conduct because the promoter did
not have reasonable grounds for representing that a ticket sold for profit
would in all cases be discovered and cancelled. Some tickets were resold
on eBay.
It is not misleading IF: two products have the same name but not the same thing.
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find more resources at oneclass.com
McWillia’s Wies Pty Ltd v McDoald’s Syste of Australia Pty Ltd (1980) 33 ALR 394:
MDoalds sought an injunction – Big Ma M.A.C ies
Held: no contravention of s 52(1) TPA (now s 18(1) ACL).
The court determines misleading/deceptive conduct objectively – does not
cover conduct which merely tends to cause confusion.
Apand Pty Ltd v The Kettle Chip Co Pty Ltd (1994) 52 FCR 474:
The Kettle Chip ad Cout Kettle.
Held: the ae Kettle had otaied a seoda eaig distitie of The
Kettle Chips podut.
Smith Crisps had engaged in passing off and contravened s 52 (1) TPA (now s
18 (1) ACL).
Silence may constitute misleading or deceptive conduct in contravention so s 18.
- An omission to mention a qualification
- An omission to mention a change which made a previous statement incorrect.
ACCC v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73.
Baked toda – misleading.
Contravened s 18(1), s 33 (misleading conduct regarding the manufacturing
process of goods), s 29(1)(a) (false or misleading representations concerning
the history of the goods).
Penalties: injunction, corrective notice, $2.5 million fine.
ACCC v Turi Foods Pty Ltd (No 4) [2013] ATPR 42-448.
Adetisig/pakagig laied that hikes ee fee to oa aoud i
lage as.
Held: it was untrue when chickens grew up.
Contravened ss 18(1) and 29(1)(a).
Penalty - $400k.
ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640.
Misleading advertisement – the conditions were conspicuous.
High Court held: whether an advertisement was misleading was to be assessed not
by whether it would induce consumers to enter into contracts with the advertiser,
but whether it would induce consumers to enter into negotiations with the
advertiser.
S 18 may be used to obtain damages by those who have been induced into a
misrepresenting contract:
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find more resources at oneclass.com
Bevanere Ptd Ltd v Lubidineuse (1985) 7 FCR 325:
The seller of a beauty clinic told the buyer that the head employee would
continue with the clinic after its sale. The seller knew this was untrue and
that the employee intended to leave and set up their own clinic in
competition nearby.
Held: the statement contravened s 18(1) ACL.
Exemption clause:
Cannot be successfully relied upon as a defence as they have made the
misrepresentations to the buyer in the lead up to contractual negotiations.
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592.
Brochure contained misrepresentations regarding title to the land. Brochure
contained a disclaimer stating that the real estate agent did not guarantee
the accuracy of the information but believed it to be reliable. The disclaimer
stated that the interested persons should make their own inquiries.
Held: no contravention of s 18 because the information was supplied by the
seller of the property.
ACL exempts news media etc from the general prohibition of misleading or deceptive
conduct (but not in advertising): s 19.
3. PROHIBITION OF UNCONSCIONABLE CONDUCT
The ACL pohiits pesos egagig i unconscionable conduct:
1. unconscionable conduct within the meaning of the unwritten law (s 20); and
2. unconscionable conduct in connection with goods or services (s 21).
A person is not at a special disadvantage merely because of inequality of their
bargaining power.
A special disadvantage seriously affects the ability of a party to judge their own best
interests.
ACCC v CG Berbatis Holdings Pty Ltd (2003) 2014 CLR 51.
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find more resources at oneclass.com
Document Summary
Provides protection against deception, unfair terms, etc in connection with the supply of goods, services and land. Aus consumer law is sch 2 of cca = generally directed towards corporations conduct. Google inc v accc (2013) 249 clr 435: A search engine was not liable for publishing misleading or deceptive content in sponsored search results. The search engine was not the author of the misleading content, which was supplied by the advertiser. An intermediary such as the search engine would be liable if they adopted or endorsed the misleading content: prohibition of misleading or deceptive conduct. Meaning: to (cid:858)(cid:272)o(cid:374)(cid:448)e(cid:455) a (cid:373)ea(cid:374)i(cid:374)g i(cid:374)(cid:272)o(cid:374)siste(cid:374)t (cid:449)ith the t(cid:396)uth(cid:859) wo(cid:396)ld e(cid:396)ies c(cid:396)i(cid:272)ket ltd (cid:448) pa(cid:396)ish. What is the likely reaction to the representations by ordinary or reasonable members of the class to whom the representation is directed. Campomar sociedad, limitada v nike international ltd (2000) clr 45. ebay international ag v creative festival entertainment pty ltd (2006) 170 fcr 450:
