Australia: Tripped up? Meriton serviced apartments' use of TripAdvisor reviews brings ACCC action

Last Updated: 14 December 2016
Article by Peter Sise

The Meriton proceedings could clear up some legal issues in online reviews.

On 24 November 2016, the ACCC commenced proceedings against Meriton Property Services Pty Ltd concerning reviews posted on the Australian website of TripAdvisor, Inc.

The proceeding is interesting for two reasons.

First, online reviews play an important role in decision-making by consumers and promotion by businesses. This role is likely to become even more important with time.

Second, this proceeding illustrates that a respondent doesn't have to make a misleading representation directly to its customers through an online review to attract an allegation of misleading or deceptive conduct. Misleading or deceptive conduct may be alleged on the basis of a manipulation or interference with the process by which consumers post online reviews. This is something which the ACCC has referred to in its guidance on online reviews.

The ACCC's allegations against Meriton Property Services

The ACCC does not allege that Meriton posted misleading reviews on TripAdvisor's website or procured others to do so. Instead, it alleges that Meriton manipulated a process TripAdvisor used to prompt customers to post reviews so that those customers, who were likely to post a negative review, would not receive any prompt. At the time of writing, Meriton had not filed a defence, so it may be some time before the outcome of the case is known.

The operation of TripAdvisor's website is central to the allegations made by the ACCC. TripAdvisor allows customers to post reviews on its website via a TripAdvisor account or a Facebook account. TripAdvisor also offers a service to accommodation providers called "Review Express". If an accommodation provider uses this service, it must provide TripAdvisor with the email addresses of guests who stayed at its property and agreed to their details being provided to TripAdvisor. TripAdvisor sends an automated email to such guests shortly after their stay which prompts them to post a review on TripAdvisor's website. Meriton allegedly used Review Express.

The ACCC alleges that Meriton identified guests who had complained about its services or whom it suspected had a negative experience and were hence more likely to post a negative review on TripAdvisor's website. It then alleges that Meriton altered the email addresses of those guests before sending them to TripAdvisor as part of the Review Express service so that they would not receive an email from TripAdvisor prompting them to post a review.

The ACCC seeks a declaration that Meriton engaged in misleading or deceptive conduct in breach of section 18 of the Australian Consumer Law (ACL) and engaged in conduct that was "liable to mislead the public" as to the nature of its services in breach of section 34 of the ACL. It also seeks pecuniary penalties, a corrective publication, the implementation of a compliance program and injunctive relief.

Online reviews, false testimonials and the ACL

There are provisions in the ACL which are tailored to address false testimonials. Section 29(1)(e) of the ACL prohibits the making of "a false or misleading representation that purports to be a testimonial by any person". Section 29(1)(f) prohibits the making of "a false or misleading representation concerning

  1. a testimonial by any person; or
  2. a representation that purports to be such a testimonial".

Under section 29(2), a representation is taken to be misleading for the purposes of sub-sections 29(1)(e) and (f) unless evidence is adduced to the contrary. Sub-sections 151(1)(e) and (f) create an offence in similar terms to sub-sections 29(1)(e) and (f).

In the past, the ACCC has used on section 29(1)(e) to bring proceedings in relation to online reviews. For example, in ACCC v P&N Pty Ltd [2014] FCA 6, the Court ordered penalties of $145,000, injunctive relief and corrective publications in relation to video testimonials posted on YouTube and the respondents' website which featured actors purporting to be customers of the respondents.

In ACCC v A Whistle & Co (1979) Pty Limited [2015] FCA 1447, the Court ordered penalties of $215,000, injunctive relief and corrective publications in relation to testimonials published on and by the respondent and its franchisees that purported to be by customers but were not.

In addition to court proceedings, the ACCC has issued infringement notices relying on section 29(1)(e). In July 2015, Citymove Pty Ltd paid $30,600 in response to three infringement notices alleging that it used fabricated customer identities to post testimonials on Google+ and YouTube. In November 2011, Citymove also paid $6,600 in response to an infringement notice and provided a court enforceable undertaking after it published false consumer testimonials on its website,

Misleading or deceptive conduct without any direct representation

Sections 29(1)(e) and (f) both require a "false or misleading representation". In the proceeding against Meriton, the ACCC does not allege that Meriton made any misleading representation directly to consumers. Instead, it alleges that a process for the posting of online reviews was manipulated by Meriton and that this conduct resulted in consumers being misled or deceived.

Section 18 does not require any representation. It simply requires conduct that is likely to mislead or deceive. In this way, section 18 has a broader reach than sub-sections 29(1)(e) and (f).

What other conduct may be misleading in relation to online reviews?

The proceeding against Meriton concerns allegations that a business removed a source of encouragement for dissatisfied customers to post online reviews, but what about the opposite: encouraging only satisfied customers to post reviews? Some guidance has been provided by the ACCC on this issue.

In November 2013, the ACCC published guidance on the use of online reviews by businesses. This is important reading for any business which encourages its customers to post online reviews. The ACCC says that incentives to write online reviews should only be offered if "incentives are offered equally to consumers likely to be complimentary and consumers likely to be critical", the consumer is told that the incentive is available whether their review is positive or negative and the incentive is disclosed to users who rely on the reviews. The ACCC also says that reviews "may mislead consumers where they are presented as impartial, but were in fact written by ... someone ... who writes an inflated review because they have been provided with a financial or non-financial benefit".

The ACCC guidance addresses selectively providing incentives to satisfied customers, but what about simply asking satisfied customers to write a review and not making a similar request to dissatisfied customers? In that situation, no-one is offered any incentive.

Whether or not this conduct contravenes section 18 largely depends on whether it is likely to mislead or deceive consumers by giving them the impression the business has a more satisfied customer base than it actually does. This will depend on factors such as how many customers provided a review after receiving the request, would they have provided a review had they not received the request, and the total number of positive and negative reviews available about the business.

A judgment in the Meriton proceeding may provide some guidance on this issue, since removing a source of encouragement for dissatisfied customers to post reviews is likely to have a similar effect to providing a source of encouragement for satisfied customers to post reviews.

Online reviews are important to the decision-making process of consumers and can significantly assist a business in building a strong reputation (as well as a poor one!). Any guidance from the courts on what a business may legitimately do to encourage its customers to post online reviews is welcome. For this reason, ACCC v Meriton is one to watch.


Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions