Consumers For Avoiding Severe Consequences

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Consumers For Avoiding Severe Consequences

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Question:

Discuss About The Consumers For Avoiding Severe Consequences?

Answer:

Introduction:
Generally, business uses the advertisement mode for the purpose of introducing and promoting their goods and services. These advertisements are published through various modes such as radio, television, newspaper, print media, etc. It is necessary for business to compile with all the laws and provisions of the Act while publishing the advertisement.
Australian Consumer Law is the laws which protects the interest of the consumer in the Australia, and also ensure fair dealings. It must be noted that ACL is the part of the Competition and Consumer Act 2010.
This essay states the important laws and provisions which must be followed by business while advertising their goods and services. Subsequently, essay is concluded with brief conclusion.
Discussion:
Now a day, advertising and selling practices are conducted by the business rapidly and these practices not only occurred through above stated modes only. Now, these practices are occurred in online environment also such as through E-mail, online sites, apps, social media, etc. It must be noted that those business which operations their functions through online modes are fall under similar laws. In other words, these businesses possess same rights and obligations which are possessed by traditional stores and business. Therefore, it is necessary that business must ensure that their practices are compiled with the laws.
Chapter 2 and 3 of the ACL deals with the conduct of the business related to commercial matters which give another party wrong impression and idea about the actual situation. It must be noted that these chapters also deal with the advertisements published by the business[1].
Misleading and deceptive conduct & false representation:
Section 18 and 29 of the Competition and Consumer Act 2010- Schedule 2, deals with misleading and deceptive conduct or false representation. These sections of ACL prohibit the business from engaging in any such conduct which[2]:

Mislead or deceive any other person.
Likely to mislead or deceive the consumers who are entering into commercial contract with business.

Business can engage in this type of conduct through personal discussions and negotiations, print advertisement, or through any other mode of communication[3].
Numbers of cases are considered by Court for the purpose of determining the actual meaning of misleading and deceiving conduct. Generally, court focus on mislead and in practice this term is much broader. Those consumers who mislead are also falls under the definition of deceived. Therefore, misleading conduct includes following conduct and behavior of business:

Making false and wrong claims through advertisement.
Consumers rely on those advertisements and enter into contract with the business.
Advertisements do not state important information related to the product or service.
Advertisements create false impressions on the consumers.

However, it is very easy to identify the conduct which misleads others, but conduct which likely to mislead is difficult to identify. It is necessary for Court to determine whether subject matter in the case communicates wrong information or create false impression on another person. This question is answered by court after considering all the circumstances of the case but Court does not consider the business intention while deciding this question.
As per the provisions of section 18 and 29, business must not conduct any such practice which is misleading. In other words, business must act in good faith and engaged in fair dealings with their consumers. These sections mainly promote best practices of the business.
Business must ensure that goods and services should be selling on the basis of their merit and not by adopting any unfair approach. This principle is applied on the matters related with commercial dealings.

This can be understood through case law Australian Competition and Consumer
Commission V TPG Internet Pty Ltd[4]. In this case, TPG conduct two advertisement campaigns which include initial advertisement and revised advertisement after receiving 87B undertaking from ACCC related to the initial advertisement. These advertisement campaigns are conducted from the 25 September 2010 to 29 November 2011. Numbers of media streams are involved by this advertisement such as television, radio, etc , for the purpose of promoting new scheme of TPG related to internet services. As per this scheme TPG offer unlimited internet services for $ 29.99 only and this scheme was named as ADSL2+ broadband internet plan.
In reality, company charged hidden cost from their consumers which include $30 per month for bundling and 149.99 as setup fee. Information related to these costs was not stated in the advertisement and only single price that was $29.99 was reflected in the advertisement.
In this case, ASIC filed application against the TPG for engaging in misleading and deceptive conduct through advertisement in the Federal Court and ASIC succeeded in their application. Later, TPG file successful appeal against the decision of Federal Court in Full Federal Court.
Decision of the full Federal court was set aside by the High Court on the basis that Full finance Court fails to apply correct principles in this case. High court stated that advertisement is misleading and deceptive because it provides false representation to the consumers.
Therefore, Court held that conduct of TPG was misleading and deceptive under section 18 and 29 of the ACL[5].
Conclusion:
Section 18 and 29 of the ACL deals with the misleading and deceptive conduct related to the advertisement, and provisions of these sections prohibit the conduct of business which result in mislead and deceptive conduct. Therefore, organizations must ensure fair dealings with their consumers for avoiding severe consequences.

References
ACL, Agreement, < https://www.australiancontractlaw.com/law/formation-agreement.html>, accessed on 19th September 2017.
Federal Court of Australia, (2012). TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 (20 December 2012), , accessed on 19th September 2017.
ACCC, Accounting and selling guide, < https://www.accc.gov.au/accc-book/printer-friendly/29527>, Accessed on 19th September 2017.
Battersby, M. (2013). Advertising and the ACL: Fine print couldn’t save TPG Internet in the High Court, , accessed on 19th September 2017.
Austlii, Paterson, Jeannie Marie — “The New Consumer Guarantee Law and the Reasons for Replacing the Regime of Statutory Implied Terms in Consumer Transactions” [2011] MelbULawRw 8; (2011) 35(1) Melbourne University Law Review 252, < https://www.austlii.edu.au/au/journals/MelbULawRw/2011/8.html>, accessed on 19th Septembe
[1] ACCC, Advertising and selling guide, < https://www.accc.gov.au/accc-book/printer-friendly/29527>, Accessed on 19th September 2017.
[2] Competition and Consumer Act 2010- Schedule 2- Section 18.
[3] Competition and Consumer Act 2010- Schedule 2- Section 29.
[4] Federal Court of Australia, (2012). TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] Management (20 December 2012), , accessed on 19th September 2017.
[5] Battersby, M. (2013). Advertising and the ACL: Fine print couldn’t save TPG Internet in the High Court, , accessed on 19th September 2017

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