Employsure’s Google Ads found to mislead businesses

The Full Federal Court, in the case of Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142, unanimously upheld the appeal by the ACCC regarding a number of Google Ads, posted by Employsure Pty Ltd (Employsure) – a workplace relations advisory company) between August 2016 and August 2018.

Statutory framework

The Australian Consumer Law (ACL) is contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth).  Section 18 provides:

“18 Misleading or deceptive conduct

• A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

It follows from section 18 that, before a Court will make a finding of misleading or deceptive conduct, it must be seen that a person, in trade or commerce, engaged in conduct that is misleading or deceptive.

There are four (4) elements to be satisfied in such an action.  Misleading and deceptive conduct is the critical element and has been described, in McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 at 411 as: “… to be read as meaning “may mislead or deceive” or “may be expected to mislead or deceive” or “has a capacity or tendency to mislead or deceive.” [emphasis added].

Section 29 in Schedule 2 of the ACL prohibits false or misleading representations about goods or services and provides:

“29 False or misleading representations about goods or services

• A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(b) make a false of misleading representation that services are of a particular standard, quality, value or grade; or

(h) make a false or misleading representation that the person making the representation has a sponsorship, approval or affiliation.”

Misleading advertisements

Employsure purchased Google Ads featuring several headlines, such as ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’.   The SEO optimisation of the ads were designed to in response to search terms such as ‘fair work ombudsman’ and ‘fair work Australia helpline’.  Employsure also advertised call centre contact numbers for a ‘Helpline’ providing free advice regarding to employment relations on its websites.

Relief provided

The Court, saw fit to provide declaratory relief and remit the proceeding to the primary judge for hearing as to the injunctive relief sought.  The declaratory relief, as sought by the ACCC, saw the Full Court declare that Employsure:

• engaged in conduct, which was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18(1) of the Australian Consumer Law in Schedule 2 to the Competition and Consumer Act 2010 (Cth); and
• made false or misleading representations that:
  • its services are of a particular standard or quality in contravention of section 29(1)(b) of the ACL; and
  • it has government sponsorship or approval in contravention of section 29(1)(h) of the ACL.

Links and further references

Legislation

Competition and Consumer Act 2010 (Cth)

Cases

Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142

McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394

Further information on misleading and deceptive conduct

If you need advice on misleading and deceptive conduct, contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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