Watch out for misleading and deceptive conduct with small print!
Small print is a part of modern advertising and it is used to state terms and conditions of the advertised product. The question usually raised to the tribunal or court is whether the small print had sufficient prominence to avoid being misleading. Each claim that comes before the tribunal or court is determined on their particular facts. The High Court has held that were an advertisement emphasis particular words and other words are positioned into obscurity this can result with misleading advertising.
With the power of internet advertising misleading conduct has become very relevant to the consumer. Websites registered in Australia which end in ‘.com.au’ are listed in the hundreds of thousands, and a good majority that trade with the consumer are misleading as they fail to provide proper disclosure to the consumer, or make that party aware of the terms and conditions clearly so they understand what they are clicking too, or if they are not sure, to inquire further with the vendor (operators/owners) of the website.
A good example of websites the consumer should be on high alert for are those websites that fail to provide proper contact information, such as: street address of the business; contact number; ABN or ACN number. The websites that fail to provide basic information are similar to ghost sites that can be on the internet one day and gone the next, which makes it difficult for the consumer to raise a claim against, unless they know further details about the vendor of the website to pursue. So a prudent person will check the contact page first or the legal notices of the website, to see if there is details upon which they can properly contact the company, and not just through a data entry field on the website.
If a website provides full contact details on how the vendors of that website can be contacted, then you can be assured that in the event there was misleading conduct with the content of the website, you will be able to properly pursue a claim. This simple check is a basic minimum a consumer needs to do before they click that button ‘SUBMIT’.
So let’s have a look at a few cases that concern small print!
In ACCC v Harvey Norman Holdings Ltd , Harvey Norman distributed brochures which failed to properly identify special offers advertised in the catalogue where only at selected stores. The conditions were in small print on the advertisement and were not brought to the attention of the consumer. The court held the small print as misleading, and a penalty of $750,000 was imposed against the company.
Then in ACCC v Nonchalant Pty Ltd (in liq) , in this case a car rental company advertised a special daily rate for hire cars with the expiry date of the special offer in small print. The court found the car company did engage with misleading and deceptive conduct because the expiry date was in small print and hard to identify, and the consumer’s attention was not brought to it by any symbol such as an asterisk.
Considering a further case, in Energizer Aust Pty Ltd v Remington Products Aust Pty Ltd , Remington displayed advertising on the front of their batteries packaging that they lasted as long as Energizer, while on the back of the packaging in small print it stated the claim was compared to only one type of battery from Energizer. The court held that as Remington did not bring the attention of the consumer to the condition on the back of the packaging, the consumer would be misled to believe that Remington’s batteries were the same as all Energizer batteries, which was false. The court held Remington had committed misleading and deceptive conduct.
As another example, in TPC v Optus Communications Pty Ltd (1996), Optus advertised free local calls on the weekend, which stated that some exclusions apply with no further detail. The court held the advertising to be misleading and deceptive.
Then finally in Cantarella Bros Pty Ltd v Valcorp Fine Foods Pty ltd , Valcorp advertised that their coffee was the number one brand in the market, which it was not. The court found such statement by Valcorp to be misleading, noting the small print on the advertisement explaining the statement was insufficient and not clearly brought to the consumer’s attention.
Misleading and deceptive conduct has a broad application when it comes to fine print. So next time when you are considering purchasing, take a step back, and ask yourself have you been fully informed. Then if you are not sure, get that legal advice to protect your legal rights and interests.