competition law

Tortious interference with contract – what must be proven?

Unlawful interference with contractual relations (Interference) is a tort that allows  damages to be claimed against a Defendant who has induced or procured a third party to breach their contractual obligations to the Plaintiff in the proceedings.  In essence, a Defendant’s intention to induce or procure an entity to act or refrain from acting whilst being aware that such an action would result in said entity breach its contractual obligations to the Plaintiff gives rise to the Interference.[1]  This article outlines the elements needed to be proven in order to establish an Interference. [Read more…]

Explaining the Media Bargaining Code

On 18 February 2021, social media company Facebook made the decision to prohibit the publishing and sharing of links (Links) from Australian media companies (News Companies) on the site.  This ban came into effect almost immediately after the Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2021 (Cth) (Media Bargaining Code) passed the House of Representatives.  The ban has roadblocked News Companies from 9 News to the Bureau of Meteorology and even the beloved satirical news provider, The Betoota Advocate.  This article analyses the proposals of the Media Bargaining Code and what the legal effect of non-compliance may be. [Read more…]

The tort of passing off

The tort of passing off occurs where one trader (Defendant) has wrongly represented that its goods or services are related to those of another (Plaintiff) by imitating the latters get-up, or look and feel of their product or service.[1]  A passing off action is designed to provide a remedy when this situation results in damage to the Plaintiff’s business reputation.  It is usually pleaded as an alternative cause of action to misleading and deceptive conduct pursuant to the Australian Consumer Law, contained inside schedule 2 of the Competition and Consumer Act 2010 (Cth).   [Read more…]

Third line forcing and commercial contracts

Third line forcing is a form of exclusive dealing that is prohibited under the Competition and Consumer Act 2010 (Cth)(CCA).  It occurs where one corporation (Forcer) enters into a contract to supply goods or services to another (Forced Party), which includes an obligation to buy goods or services from an unrelated third party (Third Line Party).

It’s common in various commercial contracts including franchise and license agreements, for the issuer of the contract to attempt to limit or restrict who a party buys goods or services from. The reason for this is obvious in terms of the need to ensure that a uniform product is delivered to customers. The often cited example being the uniformity of the width of fries served at every McDonald’s throughout Australia and for that matter the world.

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The risks of ‘manufactured’ business testimonials: a lesson from the ACCC

On 18 December 2015, the Federal Court handed down an order for relief based on a case initiated by the ACCC in July 2014.  The order imposed penalties on A Whistle & Co Pty Ltd (the Respondent) for breaching the Australian Consumer Law (ACL) by publishing fake customer testimonials.  Whilst it is common marketing practice to use testimonials to create the appearance of customer satisfaction, the judgment, Australian Competition and Consumer Commission v A Whistle & Co (1979) Pty Limited [2015] FCA 1447 demonstrates why businesses should ensure that they engage in genuine and legitimate marketing, and avoid misleading or deceiving their consumers. [Read more…]

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