What Is False And Misleading Advertising?
Whether you're launching a marketing campaign for a new product or for stuff that's already out there, it's important your ads are not false or misleading.
You may have finally decided to pursue that new marketing campaign. You could promote your new product on Instagram. It could even be your packaging. The situations all share the common foundation of marketing. If done poorly a business can create a false or misleading impression. Therefore, the aim is to avoid making illegal impressions.
What is advertising?
Advertising can mean different things to different people. In a nutshell, advertising is your product interacting with customers. This means social media posts or hiring an ad agency. It can also include the packaging on your product. There are lots of others like bait advertising or comparisons. However, silence can sometimes count as misleading advertising.
False and Misleading
The next issue is what counts as false and misleading. So to be a bit technical, the courts have held false as meaning ‘contrary to fact’. Even if the person who made the claim is unaware of it being false they would still be accountable. These false claims can even be made by low-level employees in a business. This means as a business there should be checks in place. There is no excuse for a junior employee to make a false claim and then try and argue they didn’t know.
Types of Claims
The list for what a claim can be made about is almost endless. The Competition and Consumer Act 2010 (Cth) Schedule 2 Chapter 3 Div 1 lists them. Some examples would be quality, standard, origin, benefits and performance. This doesn’t mean fine print can get you out of breaking the rules. As such, big cases in Australia have lost when businesses sold ‘free products’. However, the products ended up costing money. The courts didn’t allow the fine print to protect the firms. Therefore, fine print shouldn’t contradict the general message of an ad. In the case of silence, if an internet provider didn’t tell you that your suburb had no coverage this would be misleading. If you are unsure if your advertising is legal you can check with a consumer lawyer.
You might have heard of misleading and deceptive conduct. This overlaps with false and misleading claims. Hence, it can cause a lot of confusion for laypeople. The main difference is misleading conduct is about the ‘conduct’. In contrast, false and misleading claims are about creating a representation. Therefore, the mere effect of making an impression is enough.
Justin is a legal intern at Lawpath as part of the content team. He is currently studying a Bachelor of Laws and a Bachelor of Economics at UTS.