Can silence in consumer transactions amount to misleading or deceptive conduct by the seller where technology is used as the medium to communicate?
Whether silence is misleading or deceptive on a website will be subject to the terminology in question if it is likely to mislead or deceive.
With all consumer internet transactions there is a level of disclosure that is required between the seller and buyer. A seller does not need to volunteer information that will help the purchaser decide whether to buy or not, but must disclose relevant details that concern the product or services that is being purchased.
The number of websites in Australian that mislead by silence through the failure to provide sufficient disclosure on their website is enormous, and consumers need to be extra careful when reviewing content of websites to ensure they are receiving full disclosure and not being misled or deceived.
A business that operates through a website has a duty to disclose relevant facts regarding a product or service that it is offering, and it is common that vendors of websites fail to disclose such important detail. Failure by a website vendor to disclose relevant material may be argued that such silence may amount to misleading or deceptive conduct.
Some of the factors that are considered when determining if there was misleading conduct by silence, includes the knowledge of the buyer, their experience in the industry or product of concern, has that buyer dealt with the seller before and so on…
As an example of misleading by silence, in Hardy v Your Tabs Pty Ltd (in liq)  a buyer of a pizza franchise was asked why he was selling, and then failed to tell the buyer, that the reason was due to a competing business being set up in the area, was misleading conduct by silence.
A reasonable expectation of disclosure may arise if there is a term in the wrap agreement which is unusual from a consumer prospective, which would require further disclosure by the seller.
In commercial transactions the courts have been reluctant to impose additional obligations of disclosure especially where the parties are of roughly equal bargaining strength and they are capable of ascertaining relevant information.
Misleading and deceptive conduct claims by silence require careful analysis to ensure that a claim raised will have merit and be justified to bring legal proceedings.
So when things have not gone right in your website purchase and you think you may have been misled or even deceived, get that legal advice first before you make a claim to protect your legal rights & interests.