In the media
Australian news media to negotiate payment with major
digital platforms
Australian media will be able to bargain with Google and
Facebook to quickly secure fair payment for news content if a draft
mandatory code released by the ACCC is adopted. The draft code is
aimed at addressing acute bargaining power imbalances between
Australian news businesses and Google and Facebook, including
through a binding "final offer" arbitration process (31
July 2020).
More...
Country of origin food labelling evaluation begins
The evaluation of country origin labelling for food will
consider if the labels are helping consumers make more informed
choices, as well as clarifying the origin claims that businesses
can make, while avoiding excessive costs for businesses which will
be passed onto shoppers (31 July 2020).
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Full Federal Court dismisses ACCC appeal in TPG
'prepayment' case
The Full Federal Court has dismissed the ACCC's appeal
against TPG Internet Pty Ltd (TPG) in relation to
the marketing and sale of some prepaid internet, home telephone and
mobile plans. The ACCC's case was that by representing this was
a 'prepayment', consumers were misled by TPG into thinking
they could use all the money they had prepaid for out-of-plan
services, when this was not usually possible (30 July 2020).
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ACCC proposes to continue to allow airlines to cooperate
on regional routes
The coordination may involve arrangements such as each
carrier on a route operating one daily service, with revenue shared
between carriers, or an operator suspending operation on a route to
allow another carrier to maintain a viable service. ACCC
acknowledges that such coordination between airline competitors in
this way would normally raise competition concerns (29 July 2020).
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Locality Planning Energy pays penalty for alleged breach
of Electricity Retail Code
The Electricity Retail Code imposes rules on electricity
providers for how they must advertise prices and conditions on
market and standing offers. By not displaying the information
required by the Code, LPE made it difficult for consumers to assess
the value of the deal against others advertised in the market (29
July 2020).
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ACCC launches action against Google
The ACCC alleges Google misled consumers when it failed to
properly inform consumers, and did not gain their explicit informed
consent, about its move in 2016 to start combining personal
information in consumers' Google accounts with information
about those individuals' activities on non-Google sites that
used Google technology, formerly DoubleClick technology, to display
ads. The ACCC also alleges that Google misled consumers about a
related change to its privacy policy.
Correction: An earlier version of this media release used a
hypothetical example that suggested that Google used information
about users' health to personalise or target advertisements.
Google says that it does not show personalised ads based on health
information. This example has been removed from the media release
(27 July 2020).
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NSW quietly axed the law that could've prevented
COVID-19 price gouging
A former Fair Trading commissioner says legislation
designed to deal with post-war scarcity could've stopped the
marketplace chaos of 2020 — except that it was repealed last
year without public debate (25 July 2020).
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Ruby Princess operators face class action after
coronavirus outbreak on cruise ship
Eight hundred people have joined a class action against
the operators of the Ruby Princess over its "misleading and
deceptive" conduct surrounding the COVID-19 outbreak in March
(24 July 2020).
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ACCC back in court as banking cartel case resumes
The criminal cartel case against banks and bankers
continued from 20-24 July in the District Court in Penrith before
Magistrate Giles, courtesy of a virtual courtroom (24 July 2020).
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Service Seeking to pay penalty for misleading online
'customer' reviews
Service Seeking Pty Ltd will pay $600,000 in penalties for
making false or misleading representations regarding reviews of
businesses which were offering services on the platform. Service
Seeking admitted that it had falsely represented that reviews
published on its platform were by customers, when in fact the
reviews had been created by the businesses themselves through the
use of Service Seeking's 'Fast Feedback' feature (22
July 2020).
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ACCC proposes to allow oil refineries to continue to
cooperate on fuel supply measures
The ACCC is proposing to allow The Australian Institute of
Petroleum and major oil refiners to continue to cooperate on
measures designed to ensure fuel security during the COVID-19
pandemic. An interim authorisation was granted in April (23 July
2020).
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Chrisco undertakes to address concerns about lay-by
plans and promotions
Chrisco Hampers Australia Limited (Chrisco) has provided a
court-enforceable undertaking to the ACCC in which it acknowledges
that a term in its lay-by agreements for Christmas hampers and
other items, known as a "HeadStart Plan", may be an
unfair contract term. Chrisco also admitted that it likely made
false or misleading representations to consumers in its promotions
about the plan (21 July 2020).
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Practice and Regulation
Consumer Safeguards Review Part C: Choice and fairness -
consultation paper
Department of Infrastructure, Transport, Regional
Development and Communications (Australia)
Government of Australia: 27 July 2020
The Consumer Safeguards Review is examining what consumer
safeguards are required for a changing communications environment,
with a focus on the post-2020 environment. This consultation paper
seeks the public's views on proposals for reform regarding
choice and fairness in the retail relationship between customers.
More...
Consultation: Country of origin food labelling
The evaluation of country origin labelling for food will
consider if the labels are helping consumers make more informed
choices, as well as clarifying the origin claims that businesses
can make, while avoiding excessive costs for businesses which will
be passed onto shoppers.
The consultation will include surveys, consumer focus groups and
interviews with industry and government.
A discussion paper and an opportunity to provide views is available
here until 11 September. The evaluation is expected to be
completed by mid-2021. More information on country of origin
labelling is available
here.
ACCC: COVID-19 (coronavirus) information for business
2020
As a first step, we encourage businesses to contact
customers wherever possible to advise them of how you are handling
various circumstances. In doing so, businesses should continue to
be mindful of their obligations under the Australian Consumer Law,
which include:
- to not mislead customers, including about what the customer is entitled to under their terms and conditions
- to not act unconscionably when dealing with their customers
- to not seek to rely on unfair terms in standard form contracts with customers.
Guidelines on Part XICA - Prohibited conduct in the
energy market
These guidelines set out how the ACCC will interpret Part
XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they
explain the general approach the ACCC will take in investigating
alleged contraventions of Part XICA (prohibiting certain conduct
involving retail pricing, financial contract markets and
electricity spot markets) Part XICA will be in effect from 10 June
2020 to 1 January 2026.
More...
Cases
PDP Capital Pty Ltd v Grasshopper Ventures Pty
Ltd [2020] FCA
1078
TRADE MARKS – infringement claim pursuant to s 120
of the Trade Marks Act 1995 (Cth) (Act) – claims for
rectification of the Register pursuant to s 88(2)(a), relying on
the grounds under ss 44, 58, 59 and 60, and s 88(2)(c) of the Act
– claims for removal from the Register for non-use pursuant
to s 92(4) and s 101 of the Act
COMPETITION – misleading or deceptive conduct in
contravention of s 18 and s 29 of the Australian Consumer Law
– whether relevant reputation was established at the date of
the impugned conduct – whether there was any relevant
misrepresentation – application dismissed
TORTS – passing off – whether relevant reputation was
established at the date of the impugned conduct – whether
there was any relevant misrepresentation – application
dismissed
Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 29
Federal Court of Australia Act 1976 (Cth), ss 37AE, 37AF, 37AG,
37AJ
Trade Marks Act 1995 (Cth), ss 6, 7, 8, 10, 14, 17, 20, 27, 44, 58,
59, 60, 88, 89, 92, 100, 101, 120
Australian Competition and Consumer Commission v TPG
Internet Pty Ltd [2020] FCAFC
130
CONSUMER LAW – prohibitions against misleading or
deceptive conduct and false or misleading representations –
prepaid telecommunications services – whether statements made
on website and brochure conveyed misleading representation
concerning refund of prepayment – applicable legal principles
– whether it is necessary to show that a "not
insignificant number" of persons must be misled or deceived
– appeal dismissed
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian
Consumer Law) ss 18, 29(1)(b), 29(1)(g), 29(1)(i)
Zaghloul v Jewellery & Gift Buying Service Pty Ltd
t/as Nationwide Jewellers [2020] FCA
1045
BANKRUPTCY - annulment - appeal from decision to dismiss
application for annulment of bankruptcy - application for annulment
brought after discharge - creditor's petition based on failure
to comply with bankruptcy notice requiring payment of judgment debt
- whether court should go behind judgment debt - whether appellant
was solvent at time of sequestration order - where service of
creditor's petition was pursuant to substituted service orders
- whether sequestration order ought not to have been made - whether
discretion ought to have been exercised to grant annulment - where
appellant alleged misleading or deceptive conduct and negligence on
part of petitioning creditor and sought award of damages - where
appellant alleged breach of duty on part of trustee in bankruptcy
and sought relief - where primary judge refused to award damages or
other relief - no error on part of primary judge demonstrated
Australian Competition and Consumer Commission v
Service Seeking Pty Ltd [2020] FCA
1040
CONSUMER LAW - misleading or deceptive conduct -
application by regulator for declarations, pecuniary penalty and
other orders - respondent admits it contravened s 18, s 29(e) and s
34 of the Australian Consumer Law - parties agreed facts and orders
to determine proceeding - whether appropriate to make the orders
sought by the parties - agreed contraventions borne out by the
evidence - appropriate to grant declarations and injunction sought
in the circumstances - consideration of principles relevant to
assessing penalties - impugned conduct can be characterised as one
course of conduct - proposed penalty appropriate in all the
circumstances
Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian
Consumer Law) ss 18, 29, 34, 224, 232, Part 3-1
Ng v Chan [2020] NSWSC
954
Misleading and deceptive conduct made out. Fraud found.
Damages awarded to the plaintiff. Defendant ordered to pay the
plaintiff's costs.
CONTRACTS – Misrepresentation – Fraudulent
misrepresentation – the plaintiff paid the defendant two
tranches of payments to acquire shares in an incorporated law firm
– the law firm has since ceased to conduct practice due to
the intervention of the Law Society of NSW – the plaintiff
alleges the total of both tranches was $430,000 and the defendant
argues it was only $300,000 – the plaintiff alleges he was
induced to make both tranches through fraudulent, misleading and
deceptive conduct by the defendant and an intermediary – the
plaintiff seeks relief that the defendant repay the $430,000
purchase price of the shares – the defendant argues that he
did not misrepresent the law firm's prospects and the
intermediary was not his agent.
Australian Securities and Investment Commission Act 2001 (Cth), ss
12BB, 12DA, 12GF
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.