Misleading representations and deceptive conduct (2022)

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Misleading or deceptive conduct is when a business makes claims or representations that are likely to create a false impression in consumers as to the price, value or quality of goods or services on offer. This is against the law.

It’s also against the law for businesses to make false claims or misleading representations about their goods or services. This means businesses are not allowed to make statements that are incorrect or likely to create a false impression.

It doesn’t matter if the business intended to mislead or deceive, what matters is how their statements and actions affect the thoughts and beliefs of a consumer. The law applies even if no one has suffered any loss or damage as a result of the business conduct.

The maximum penalty for each offence is $500, 000 for an individual.

Body corporates can be charged whichever is greater:

  • $10 million, or
  • three times the value of the benefit received, or
  • 10 per cent of annual turnover in the preceding year (if the Court cannot determine the benefit obtained from the offence).

Misleading or deceptive claims and conduct can include:

  • fake reviews and testimonials
  • unfounded predictions and promises
  • wild exaggeration and vague claims
  • offering rebates, prizes and other free items without providing them
  • bait advertising
  • misleading or altered guarantees, conditions and warranties
  • relying on disclaimers and fine print
  • silence or failure to disclose
  • misleading conduct as to the nature of goods and services
  • false representation about employment and business activities
  • wrongly accepting payments for goods or services
  • falsely representing the sale or grant of an interest in land
  • other unconscionable conduct.

Fake reviews and testimonials

It’s against the law to make false or misleading testimonials and reviews. Fake or misleading testimonials and reviews can persuade customers to buy something they otherwise wouldn’t.

Testimonials are statements from previous customers about their experience with a product or service. They give consumers confidence in a product or service on the basis that another person (sometimes a celebrity) is satisfied with the goods or services.

See an example

A supplier published a newspaper advertisement about a 'nasal delivery system' to treat impotence or erectile dysfunction. The advertisement quoted an interview with a celebrity that falsely claimed he had suffered from impotence and the nasal delivery system had assisted in dealing with this condition.

(Video) Misleading and Deceptive Conduct

Unfounded predictions and promises

Businesses must not make promises they know they cannot keep or make predictions without reasonable basis.

A statement about the future that does not turn out to be true is not necessarily misleading or deceptive. However, promises, opinions and predictions can be misleading or deceptive if the business making the claim:

  • knew it was false
  • did not care whether it was true or not
  • had no reasonable grounds for making it.
See an example

A real estate agency was selling apartments with a view of the sea. The agency assured prospective buyers that the view was protected because the land between the apartment block and the sea was zoned for low-rise development. This was based on information provided by a council officer. But the council officer was wrong. The zoning was about to change, allowing high-rise development. The agency had made a false statement about a future matter but had reasonable grounds for making these statement, so was not liable for misleading consumers.

Wild exaggeration and vague claims

A wildly exaggerated or vague claim about a product or service is known as ‘puffery’. This type of claim is one that no reasonable person could treat seriously or find misleading. It is not considered misleading or deceptive under Australian Consumer Law.

See an example

A café claims to make the best coffee in the world. It is unlikely a potential customer would believe this claim without any evidence to support it (like an award from an international coffee-making competition).

Offering rebates, prizes and other free items without providing them

Businesses cannot offer rebates, gifts, prizes or other free items if they are not going to provide them.

The rebate, gift, prize or other free item must be provided within the specified time or, if no time was specified, within a reasonable time.

See an example

A stereo equipment retailer had a promotion where customers went into a draw to win prizes when they bought stereo equipment. The retailer felt the promotion had not been a financial success, so the closing date was extended and fake names were added to the draw. The retailer pleaded guilty and was fined.

Bait advertising

Bait advertising occurs when a business advertises a product, usually at a discounted price and does not have a reasonable supply of goods (considering the extent of advertising and the expected consumer response). As the consumer has been drawn into the shop by the ‘attractive’ price, they may be persuaded to buy another item at a higher price.

What is considered a ‘reasonable supply’ of goods will depend on several factors, including the type of goods and what is said in the advertisement.

(Video) Misleading & Deceptive Conduct

See an example

An electronics retailer runs a major national campaign, advertising 50-inch televisions at a low price of $799 for a week-long sale. The retailer usually sells about 30 televisions of this type every week. The retailer only stocks two televisions at the advertised price and refuses to take customer orders. When customers attempt to buy the television at the advertised price, they are told it is out of stock and are offered a more expensive unit for $999.

Misleading or altered guarantees, conditions and warranties

It’s against the law to make false or misleading representations about consumer guarantees.

Under Australian Consumer Law, most products and services bought in Australia come with automatic consumer guarantees that the product/service you purchased will work and do what you asked for.

Businesses cannot:

  • add conditions to your rights under consumer guarantees
  • force you to give up your rights under consumer guarantees
  • force you to pay for consumer guarantees, warranty or extended warranty

Find out more about your rights under consumer guarantees and warranties.

See an example

An online store implemented an illegal returns policy. The policy misrepresented consumer rights under Australian Consumer Law, particularly the right to a repair, replacement or refund for a faulty item.

Relying on disclaimers and fine print

A business cannot rely on disclaimers and fine print as an excuse for misleading or deceptive conduct.

While it is common practice for advertisements to include some information in fine print, this information must not contradict the overall message of the advertisement.

See an example

A large department store advertised '25 per cent off all clothing' but in small print excluded certain clothing. A court said this was misleading conduct.

With this in mind, you should not ignore disclaimers. Prominently displaying disclaimers may be enough to protect a business, depending on the circumstances.

See an example

A bank advertises low credit card interest rates for the first 12 months. The advertisement clearly indicates the low rates are only available to new customers who apply within a certain period. This disclaimer is enough because it clearly informs consumers about the terms and conditions.

(Video) Directors personal liability for misleading and deceptive conduct

Silence or failure to disclose

A business can break the law if it fails to disclose relevant facts to you. Silence can be misleading or deceptive when:

  • one person fails to alert another to facts known only to them, and the facts are relevant to the decision
  • important details a person should know are not conveyed to them
  • a change in circumstance meant information already provided was incorrect.

Whether silence is misleading or deceptive will depend on the circumstances of each case.

See an example

A consumer who lives in a regional area is buying a mobile phone. The phone salesperson knows where the consumer lives but fails to tell them that the coverage is poor in that area. In this instance, silence is misleading because facts relevant to the decision are withheld from the consumer.

Misleading conduct as to the nature of goods and services

A business must not engage in conduct likely to mislead the public about the nature, manufacturing process, characteristics, suitability for purpose, or quantity of any goods or services.

See an example

An allergy treatment provider claimed it could identify and cure or eliminate a person’s allergies or allergic reactions. However, the company could not do this. A Court found that the company had engaged in false, misleading or deceptive conduct.

False representations about employment and business activities

It is illegal for a business to make false or misleading representations about the:

  • availability, nature or terms and conditions of employment
  • profitability, risk or other material aspect of any business activity that requires work or investment by a person.
See an example

A second-hand truck dealer falsely told buyers they could get employment from certain places if they bought the dealer’s trucks. The truck dealer was found guilty of misleading the buyers and fined.

Wrongly accepting payment for goods or services

Businesses are not allowed to accept payment for goods or services:

  • they do not intend to supply
  • if they know, or should have known, they would not be able to supply the goods or services in a timely manner.
(Video) Misleading and Deceptive Conduct in Pre-Employment Negotiations
See an example

A landscaper contracts to provide yellow paving stones, knowing that only grey paving stones are available at the time of the agreement.

This aspect of the law is not intended to affect businesses who genuinely try to meet supply agreements but are unable to do so because something is beyond their control. Businesses are expected to exercise due diligence and take reasonable precautions.

False or misleading representations about the sale/grant of an interest in land

A business must not make false or misleading representations in the sale or grant of an interest in land. This means businesses must not:

  • promote a sponsorship, approval or affiliation they do not have
  • make false or misleading representations about the:
    • nature of the interest in the land
    • price, location, characteristics or use that can be made of the land
    • availability of facilities.
See an example

A real estate agent could be making a false or misleading representation about a property if they advertised ‘beachfront lots’ that do not front the beach.

For more information on the sale or grant of land, refer to NSW Department of Planning, Industry and Environment or NSW Land Registry Services.

Unconscionable conduct

Unconscionable conduct is a statement or action so unreasonable it defies good conscience (as judged against the norms of society). For conduct to be unconscionable, it must be more than just unfair or unreasonable.

For example, certain conduct may be unconscionable where one party knowingly exploits the special disadvantage of another. This might be:

  • not properly explaining the conditions of a contract to a person who does not speak English or has a learning disability
  • taking advantage of a low-income consumer by making false statements about the real cost of a loan
  • using a friend or relative of the consumer to influence their decision.

Conduct that is particularly harsh or oppressive may also be considered unconscionable, like:

  • not allowing the consumer enough time to read an agreement, ask questions or get advice
  • forcing a person to sign a blank or one-sided contract
  • failing to disclose key contractual terms
  • using high pressure tactics, such as refusing to take no for an answer.

Note: These are examples and not a complete list of unconscionable conduct. Sometimes these instances will not be unconscionable – it depends on the circumstances.

Further information

Small businesses in need of assistance can contact the NSW Small Business Commissioner.

FAQs

What is an example of a false or misleading representation? ›

Courts have found false and misleading representations in these cases - a: manufacturer sold socks, which were not pure cotton, labelled as 'pure cotton' retailer placed a label on garments showing a sale price and a higher, crossed-out price. However, the garments had never sold for the higher price.

How can you prevent misleading and deceptive conduct? ›

Avoid using unfair business practices against consumers
  1. Avoid misleading your customers about price, quality and value.
  2. Avoid making false claims about products or services.
  3. Avoid making false and misleading claims about Indigenous souvenirs and artwork.
  4. Avoid using unfair business tactics.
  5. Claims about country of origin.
15 Mar 2021

What is false or misleading conduct? ›

Misleading or deceptive conduct is when a business makes claims or representations that are likely to create a false impression in consumers as to the price, value or quality of goods or services on offer. This is against the law.

What is an example of false representation? ›

Examples of fraud by false representation include: Selling an item under false pretences: i.e. claiming a gemstone is a diamond when in fact it is cubic zirconia. Using a credit card that does not belong to you to make a purchase. Lying on an application form: i.e. overstating your income to gain a mortgage.

What does misleading mean in court? ›

Legal Definition of misleading

: possessing the capacity or tendency to create a mistaken understanding or impression — compare deceptive, fraudulent.

Is misleading and deceptive conduct a crime? ›

False or misleading conduct can be a criminal offence, but not always. The conduct must be extremely serious it to be a criminal offence. Conduct that amounts to false or misleading conduct may include the making of incorrect statements or making statements that create a false impression to consumers.

Can you get in trouble for false advertising? ›

False advertising is illegal. Federally, the FTC can bring a criminal suit against a company for false advertising. In California, the state attorney general may bring a civil suit against companies who violate California Business and Professions Code 17500, which makes false and misleading advertising illegal.

How do you protect yourself from advertising? ›

How can I stop or limit ad tracking and improve my data privacy?
  1. Install AdBlock. ...
  2. Use the EasyPrivacy Filter List. ...
  3. Enable “Do Not Track.” Do Not Track, or DNT, is a setting that allows your browser to request that websites you visit do not collect your browsing data. ...
  4. Turn Off Targeted Facebook Ads.
6 Sept 2019

Can opinions be misleading? ›

Predictions and opinions

A statement about the future that does not turn out to be true is not necessarily misleading or deceptive. However promises, opinions and predictions can be false and misleading if the person making the statement: knows it is untrue or incorrect.

What are the penalties for misleading and deceptive conduct? ›

The infringement notice penalty amount for providing false or misleading information, under a substantiation notice, is $11,100 for a corporation and $2,220 for an individual.

Why is misleading and deceptive conduct bad? ›

Misleading and deceptive conduct can lead to civil actions including: Having to pay compensation orders. Awards in damages against you (which means you have to pay more than just compensation for the other side's loss). Being disqualified from operating a business.

What is considered to be misleading behaviour in relation to a disclosing document? ›

guess the facts. omit relevant information. make ambiguous or contradictory statements or use unnecessary jargon. make promises you cannot keep, or make predictions without reasonable basis.

How do you prove false representation? ›

To gain a conviction for the offence of fraud by false representation, the prosecution must prove the defendant made a false representation, dishonestly, knowing the representation was or might be untrue or misleading with an intent to make a gain for themselves or cause loss to another or expose another to a risk of ...

What is the most serious type of misrepresentation? ›

Fraudulent misrepresentation is the most serious form of misrepresentation and, therefore, the most difficult to prove. In business disputes, fraudulent misrepresentation can lead to major financial losses and for consumers it can mean being cheated out of receiving a good or service they have otherwise been promised.

What are the 3 types of misrepresentation? ›

There are three types of misrepresentations—innocent misrepresentation, negligent misrepresentation, and fraudulent misrepresentation—all of which have varying remedies.

What is the punishment for misleading the court? ›

and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Explanation 1.

What is misleading questions in court? ›

A misleading question is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated.

What is a word for deliberately misleading? ›

deceitful. The definition of deceitful is someone or something intentionally untruthful or intended to mislead. 3. 2.

Can a person sue a company for false advertising? ›

When you are advertising your goods or services, it is crucial that you do not make any false statements. If you do, your customers might be able to sue you for a pre-contractual misrepresentation or misleading or deceptive conduct.

Who is a person under the ACL? ›

Recap – Who is a consumer? Under the ACL, any supply of goods to a person1 is a supply to a 'consumer' if: the price payable for the goods does not exceed $40,000; the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or.

Is silence misleading and deceptive conduct? ›

Silence can be misleading or deceptive when, for example: one person fails to alert another to facts known only to them, and the facts are relevant to a decision. important details a person should know are not conveyed to them. a change in circumstance meant information already provided was incorrect.

Can you sue for false allegations? ›

You could sue them for libel or slander. Technically these crimes are torts rather than criminal offences so an arrest wouldn't occur.

How much can you sue for false advertising? ›

The Federal Trade Commission (FTC), a federal agency charged with protecting consumers, can collect civil penalties up to $40,000.

How do you win a false advertising lawsuit? ›

To win the lawsuit for false advertising, the consumer must prove that the: Advertising was incorrect or misleading. Consumer depended on false advertising to decide to purchase the product or service. Consumer suffered loss or damages after purchasing the falsely advertised product or service.

How do ads track you? ›

Websites and apps use specialized code that logs your activity in your browser, and this is how both the sites themselves as well as third parties can figure out who you are and what you want or need. Armed with this data, they then try and sell you more relevant products and services.

How do truth in advertising laws protect consumers? ›

Truth in Advertising Laws also prohibit misleading or deceptive ads. So, if a store did have that product at the advertised price, but they knowingly only had one left without mentioning that, the ad would still be breaking the law. Ads also cannot be deceptive in any way.

What should you not do when advertising? ›

Dumb Advertising Moves to Avoid
  1. Borrowed interest. Avoid trying to associate yourself with things that have no relevance to what you do. ...
  2. Event sales. Refrain from jumping on this bandwagon. ...
  3. Ego trips. Don't put yourself in the advertising. ...
  4. Different media, different ads. ...
  5. Advertise everywhere. ...
  6. Overdoing the ads.

What is the difference between puffery and deception in advertising? ›

False advertisement is motivated by a desire to deceive or mislead the public. On the other hand, puffery is usually a matter of opinion rather than a factual representation. The aim of puffery is simply to attract more consumers rather than to purposely deceive.

What is misleading and deceptive conduct ASIC? ›

Misleading and deceptive conduct is conduct that leads, or is likely to lead, a person into error. Misleading and deceptive conduct in relation to financial products or services is prohibited under the Australian Consumer Law.

Does misleading require intent? ›

A misrepresentation is a false or misleading statement or a material omission which renders other statements misleading, with intent to deceive.

Who is responsible for false advertising? ›

The FTC has primary responsibility for determining whether specific advertising is false or misleading, and for taking action against the sponsors of such material. You can file a complaint with the FTC online or call toll-free 1-877-FTC-HELP (1-877-382-4357).

What happens if a consumer wishes to cancel a lay by agreement? ›

A customer can cancel the lay-by agreement any time before delivery of the goods. If the customer cancels the lay-by agreement you must refund the customer all amounts paid less any termination fee that was clearly specified in the lay-by agreement.

What is an example of misleading and deceptive conduct? ›

Example. A popular local cafe is for sale. When the owner is asked why they are selling the cafe, they fail to inform potential purchasers that 5 new cafes will soon be opening on the same street. The cafe owner has engaged in misleading and deceptive conduct through their silence.

What is the test used in misleading and deceptive conduct? ›

The Courts use an objective test in determining whether silence or non-disclosure may have amounted to misleading or deceptive conduct by looking at whether or not there was a reasonable expectation of disclosure in the circumstances. If there was, the conduct is likely to indicate misleading or deceptive conduct.

What is a representation ACL? ›

Representations with respect to any future matter

The Australian Consumer Law (ACL) provides that a representation with respect to future matter that is made without 'reasonable grounds' for doing so is taken to be misleading for the purpose of ACL.

What are the consequences if a prospectus contains a misleading or deceptive statement or an omission of material required to be included under the Corporations Act? ›

Under the Corporations Law, issuing a prospectus that omits material information or which contains a material statement that is false or misleading is a serious offence carrying a penalty of a $20,000 fine or 5 years imprisonment or both.

Why is misleading advertising unethical? ›

Advertising that promotes a service or product in a deceptive manner is unethical because it doesn't provide consumers with all the information they need to make a good decision. Consequently, consumers might waste money on products or services they neither need nor want.

What is misleading advertising or labeling? ›

Labeling or advertising that is likely to mislead consumers, such as labeling or advertising a used or defective product as a normal product without any explanation about the condition of the product just to sell the product.

Is misrepresentation hard to prove? ›

Misrepresentation claims can be difficult to prove and a prospective defendant will have a number of possible defences to such a claim, eg that the statement in question was not intended to be relied on or that the representee would have entered into the contract in any event.

What 3 things must be present for it to be a misrepresentation? ›

(1) The defendant made a false representation of a past or existing material fact susceptible of knowledge. (2) The defendant did so knowing the representation was false, or without knowing whether it was true or false. (3) The defendant intended to induce the plaintiff to act in reliance on that representation.

What are examples of false representation? ›

Examples of fraud by false representation include: Selling an item under false pretences: i.e. claiming a gemstone is a diamond when in fact it is cubic zirconia. Using a credit card that does not belong to you to make a purchase. Lying on an application form: i.e. overstating your income to gain a mortgage.

Is misrepresentation a criminal Offence? ›

Fraudulent Misrepresentations in Business

It includes falsification of documents, forgery, and counterfeiting, identity theft, accounting fraud. The common element is that they all involve a type of deception. There is fraud in the civil context and criminal fraud.

What are the consequences of misrepresentation? ›

If the misrepresentation is identified, the contract can be declared void and depending on the situation, the unfavourably impacted party may seek damages. In such a contract dispute, the party who made the misrepresentation becomes the defendant and the aggrieved party is the plaintiff.

What is an example of innocent misrepresentation? ›

Innocent misrepresentation examples include a seller unknowingly offering defective merchandise, or if a person on Craigslist sells a used TV but does not know it's broken. Misrepresentation is a legal term meaning a false statement that has an impact on a contract.

Is misrepresentation a negligence? ›

Fraudulent misrepresentation: where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth. Negligent misrepresentation: a representation made carelessly and in breach of duty owed by Party A to Party B to take reasonable care that the representation is accurate.

What are the 4 elements of misrepresentation? ›

The key elements of an actionable misrepresentation are:
  • the statement relied on by the representee was a statement of fact made to them by or on behalf of the representor.
  • the statement was intended by the representor to induce the representee to enter into the contract.
12 Aug 2022

What is the difference between misleading and misrepresentation? ›

In addition to the prohibition against misleading or deceptive conduct, it is unlawful for a business to make false or misleading claims about goods or services. A misrepresentation is a claim or statement that is false or misleading made by one party to another.

What law is false advertising? ›

California Law: False or Deceptive Advertising is Prohibited

Under state law (California Business and Professions Code § 17500), false and deceptive advertising is strictly prohibited. A company that violates the state's false advertising regulations could be held both civilly and criminally liable.

Which section of Australian Consumer Law deals with false or misleading representations about the sale of land? ›

There are also specific rules against making false or misleading claims or statements about services and about the sale of land or employment. Section 29 of the ACL sets out the types of claims or statements that may be false or misleading.

What is Section 18 of the Australian Consumer Law? ›

The ACL Section 18(1) provides that “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

What constitutes false advertising in Australia? ›

If the overall impression left by a business's advertisement, promotion, quotation, statement or other representation creates a misleading impression in your mind—such as to the price, value or the quality of any goods and services—then the behaviour is likely to breach the law.

How do you prove false advertising? ›

For a claim against a defendant for false advertising, the following elements are met and the plaintiff must show: (1) defendant made false or misleading statements as to his own products (or another's); (2) actual deception, or at least a tendency to deceive a substantial portion of the intended audience; (3) ...

Can you sue over false advertising? ›

Yes, you can sue for false advertising. Many states have a specific false advertising law that gives consumers the right to sue businesses for misleading them into purchasing or paying more for the company's goods or services.

How do you win a false advertising lawsuit? ›

To win the lawsuit for false advertising, the consumer must prove that the: Advertising was incorrect or misleading. Consumer depended on false advertising to decide to purchase the product or service. Consumer suffered loss or damages after purchasing the falsely advertised product or service.

What agents must take care to do in not making false and misleading claims? ›

False or misleading claims

To reduce the chances of misleading you, real estate agents must take care to: disclose all information relevant to the price of the property. advertise the selling price based on a reasonable market appraisal or the price the seller has indicated they are likely to accept.

How is misleading and deceptive conduct illegal under Australian law? ›

It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. This law applies even if you did not intend to mislead or deceive anyone or no one has suffered any loss or damage as a result of your conduct.

What penalties can the ACCC impose? ›

a maximum penalty of $10 million for a body corporate, or. $500,000 for persons other than a body corporate.

What is Section 55 Australian Consumer Law? ›

Section 55 of the ACL provides that goods supplied in trade or commerce must be reasonably fit for the purpose made known by the consumer to the supplier. Not all consumers expressly state the purpose, so goods must be fit for their normal or common use.

What is Section 54 Australian Consumer Law? ›

Section 54 of the ACL states, so to speak, that goods are of acceptable quality—that is, they are safe, durable and free from defects, are acceptable in appearance and finish and do what they are ordinarily expected to do.

What is Section 56 Australian Consumer Law? ›

Under Section 56 of the ACL when a person buys goods based on how they're described – without seeing what they're buying – the goods need to correspond with that description. Many consumer transactions are by description, that is, the consumer does not actually see the goods being purchased.

Can you sue for false advertising in Australia? ›

Under the Australian Consumer Law (ACL), businesses are not to engage in misleading or deceptive conduct or conduct which is likely to mislead or deceive the consumer (Section 18). A person includes both an individual and a legal person so companies can also be held liable for providing false or misleading advice.

Who is responsible for false advertising? ›

The FTC has primary responsibility for determining whether specific advertising is false or misleading, and for taking action against the sponsors of such material. You can file a complaint with the FTC online or call toll-free 1-877-FTC-HELP (1-877-382-4357).

Can you get fined for false advertising? ›

On first occurrence, individuals are liable to penalties of up to $750,000 and corporations are liable to penalties of up to $10,000,000. For subsequent occurrences, the penalties increase to a maximum of $1,000,000 for individuals and $15,000,000 for corporations.

Videos

1. Deceptive Trade Practices Attorney Julian Nacol
(Mark Nacol)
2. How to spot a misleading graph - Lea Gaslowitz
(TED-Ed)
3. 17BSB111 S10.2 Misleading and deceptive conduct
(Gavin Nicholson)
4. What Is Misrepresentation | Representation Matters | Misleading And Deception
(La’Sha Wright)
5. Laws Addressing Deceptive Marketing and Advertising: Module 4 of 5
(LawShelf)
6. Deciphering Disputes: Selling your business and misleading and deceptive conduct
(Madgwicks Lawyers)

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