The Law Handbook 2024

690 Section 7: Consumers, contracts, the internet and copyright Future matters The prohibition on misleading or deceptive conduct also extends to representations about future matters. The ACL requires a person who has made a statement about a future matter to show that they had reasonable grounds for making it, or it will be taken to be misleading (s 4 ACL). Disclaimers and fine print A person or corporation cannot rely on a disclaimer or exclusion clause protecting them against a misleading or deceptive conduct claim. However, in some circumstances, an express disclaimer that is prominently displayed may exclude liability for making misleading or deceptive statements in an advertisement. In Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60, an advertisement containing two disclaimers was held to make it sufficiently clear that the real estate agent was not the source of the misleading information in its advertisement for a property and that it was simply passing on information supplied by others. In these circumstances, the real estate agent was held not to be liable for the misleading statements contained in the advertisement. Similarly, in ACCC v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd [2019] FCA 676, GlaxoSmithKline (GSK) was alleged to have made false or misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain relief products. Despite having the same active ingredients, Osteo Gel was often sold at a significantly higher retail price than Emulgel. In response to the ACCC’s concerns, GSK amended the Osteo Gel packaging to include the words, ‘Same effective formula as Voltaren Emulgel’. The court found that the inclusion of these words meant that the representations were not misleading. In contrast, in ACCC v Telstra Corporation Ltd [2007] FCA 1904, Telstra made various claims about its Next G mobile network, including that it had ‘coverage everywhere you need it’. In its defence, Telstra argued that some of the advertisements directed consumers to its website, where various disclaimers about the extent of its network’s coverage could be found. The court held that these disclaimers did not prevent the conduct from being misleading or deceptive, as Telstra did not sufficiently communicate the information to potential customers. A 2021, a Federal Court decision recognised that most consumers do not read, or do not carefully read, the contents of fine print in a privacy policy ( ACCC v Google LLC (No 2) [2021] FCA 367). The Federal Court found that Google misled some users of Android mobile devices about how Google collects users’ personal location data by not making it clear to users that it was continuing to collect such data through a user’s Google account even if their ‘location history’ setting was turned off. The decision emphasises that what is relevant is the ‘overall impression’ given by a representation – notwithstanding that a close reading of the fine print might reveal the accurate position. Prohibition of misrepresentations Section 29 of the ACL prohibits making false representations in relation to a large number of matters with respect to goods or services, such as: • price; • need; • standard, desirability, quality or value; • history, age or place of origin; • sponsorship, performance characteristics, accessories, uses or benefits; • approval or affiliation; • availability of repairs or spare parts; • existence, exclusion or effect of any condition, warranty, guarantee, right or remedy; and • testimonials by any person. Representations in relation to the sale of land In connection with the sale or grant of an interest in land, section 30 of the ACL contains similar (although not so broad prohibitions) preventing: • making a representation that a person has a sponsorship or affiliation they do not have; or • making a false or misleading representation about the nature of the interest in land, price, location, characteristics or use that can be made of the land, or availability of facilities. Unconscionable conduct There are different types of unconscionable conduct under the ACL and ASIC Act. The two main types of unconscionable conduct are: