We’ve all seen advertisements on television with huge slogans blaring across our screens, followed by an avalanche of crucial information contained in the fine print. So, what must advertisers include in the fine print and how can they ensure they comply with the Australian Consumer Law (ACL)?
What are the Legal Principles?
Any advertisement must contain information which, when looked at as a whole is accurate. The advertiser must draw to the consumer’s attention any potentially misleading slogans with prominent fine print.
Fine print cannot be used to disregard what your business has stated in the rest of the advertisement. The court will first consider what is the advertisement’s dominant message, and determine whether or not it is misleading, without qualification. Next, they will examine whether or not the fine print contains a statement that corrects the misleading impression the dominant slogan gives consumers. Finally, they will assess whether this qualification is sufficiently visible so that the ordinary consumer would take notice.
Up Close: the ACCC Takes On TPG
The court recently looked at whether a slogan is misleading or deceptive in Australian Competition and Consumer Commission (ACCC) v TPG Internet Pty Ltd (2013) 250 CLR 640.
TPG had advertised an internet package bundle by stating that consumers could get an ‘unlimited ADSL+2 for $29.99 per month’. The fine print then stated that this was in addition to a telephone service for an additional $30 per month along with other fees and charges. Because of the way the advertisement was structured, consumers would be left with the impression that the whole package was for $29.99 per month, with no other charges.
What Did the Court Decide?
The High Court ultimately determined that in this case, whether TPG’s ads were misleading or deceptive depended on whether their advertisements would attract customers on the basis of the ad’s dominant message. Importantly, it is the dominant message as perceived and understood by TPG’s customers.
The High Court upheld the primary judge’s original pecuniary penalty of $2 million because TPG had engaged in misleading and deceptive conduct in breach of the Australian Consumer Law.
So, How Can My Business Comply?
If you are using fine print in advertising to provide more information to your customers, you need to ensure that the text:
- Isn’t too small to read;
- Is easy to find; and
- Is not obscured by pictures or colours.
If you are using a television advertisement, the fine print voiceover cannot be too quick or too quiet, and the fine print cannot be shown only for a second.
So, Key Takeaways?
You need to consider whether the advertisement’s dominant slogan is possibly misleading or not. If so, the fine print correcting that impression will need to appear more prominently. What type of product are you advertising? Will your consumers do their own research on the terms and conditions you are offering?
The method of your advertisement will also affect what kind of things to include in the fine print. For example, with an advertisement in a newspaper, the consumer has more time to process the ad then they do when listening to an ad on the radio.
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