› Performance characteristics, uses or benefits of services
› Distinction between 'false or misleading' and 'likely to mislead'
Consumer Law
› Sections 33 and 34 ACL
› Conduct liable to mislead the public as to nature or characteristics of services
Quick Take
1Where conduct is directed to a class of consumers, the court is not confined to identifying a single hypothetical reasonable person with only one permissible response; reasonable members of the class may respond differently to the same conduct, and the fact that some reasonable members would not be misled does not defeat a finding of contravention under s 18 of the ACL.
2Digital platform conduct involving default settings, choice architecture and omissions regarding data collection practices can constitute misleading or deceptive conduct where the overall design of screens would lead reasonable users to form incorrect conclusions about what personal data is being collected, retained and used — even where further information was available via hyperlinks that reasonable users might not click.
3There is no meaningful difference between 'misleading or deceptive' (s 18), 'false or misleading' (s 29) and 'mislead' (ss 33/34), though 'liable to mislead' under ss 33/34 requires proof of an actual probability of the public being misled, which is a higher threshold than 'likely to mislead or deceive' under s 18.
Case Details
Citation[2021] FCA 367
Reported(2021) 391 ALR 346
CourtFCA
JurisdictionCommonwealth
Decision Date16 April 2021
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