“Misleading and deceptive conduct”. These words automatically create a sense of stress, don’t they? The definition is pretty self-explanatory — it’s any conduct (behaviour/performance) that’s likely to deceive or mislead.
From a business perspective, Under section 18 of the Australian Consumer Law, it’s illegal for a business to behave in a way that will mislead or deceive or is likely to mislead or deceive the public.
How do you know if you have conducted yourself in this way?
In order to better assess whether your (or someone else's) conduct is misleading or deceptive, you can ask yourself, does the way I conduct my business give an inaccurate or false representation of the goods or services I’m providing? Is there something here that could be misconstrued?
Here’s the tough part — even if you don’t intend to mislead or deceive and are working away with honest intention, you can still be accused of (or be found to have engaged in) this behaviour.
Ways misleading or deceptive conduct can occur:
- You make disclaimers (about items not being refundable or having no guarantees) in super small writing that people likely won’t see
- You put incorrect pricing on items that you’re advertising
- You state you’re affiliated with another company that may boost your reputation when you’re not
- Sales representatives make false statements to get a customer to sign a contract
- You guarantee a product does a particular thing (like banish wine stains!) when it does not
It doesn’t matter if it was by accident or even if no harm was done — if a complaint is made, you can be taken to court.
What happens if I’m taken to court?
Obviously, this is not ideal. But it’s always best to be prepared.
If you find yourself in court, the other party has their work cut out for them as they’d have to prove either:
- That your conduct misled them, and provide evidence of this leading to their mistake/misunderstanding; or
- That your conduct was done to intentionally deceive them and provide evidence to prove you deceived them, leading to their mistake/misunderstanding; or
- That your conduct was likely to mislead or deceive — so it’s up to the court to consider if someone in the same circumstance would likely be misled and judge based on this rather than evidence.
With me so far?
So how can I try to fix this error (and hope I don’t get taken to court!)?
You have a few options in terms of trying to come to a resolution with the party who’s made the claim against you outside of court.
You could offer some form of compensation, be it a refund or alternative products or services free of charge, or you could alter the terms of your agreement with them in order to ensure they come away feeling satisfied that you’ve done your part to correct your (however unintentional) misleading or deceptive behaviour.
But the best form of protection? Do your due diligence when advertising, promoting or sharing your services, products or offerings to ensure everything is above board and your customers leave happy.
***Disclaimer. Please read!!***
This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.
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