What should a business owner consider when they are advertising to avoid misleading and deceptive conduct?

Here is our list of key questions to ask consider.

1. Are my claims accurate?

  • Are the attributes or performance claims of the product or service an accurate representation?  In particular, do the goods or services meet the particular price, standard, quality, value, grade, composition, style or model, place of origin or particular history or use?
  • Do the goods or services have the sponsorship approval, performance characteristics, accessories, uses or benefits represented?
  • Does any of the content indicate that the client has a sponsorship, approval or affiliation that it does not have?
  • Is the communication written with any terminology (including technical) that is likely to confuse or mislead the target audience? For example: a false or misleading representation concerning the need for any goods or services or a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

2. Are my claims illegal?

  • Is any of the content likely to affect the reputation or goodwill of any person, business or corporation?
  • Does any of the content portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, sex, age, sexual preference, religion, disability or political belief?
  • Does any of the content indicate that the client is likely to discriminate against any person/s based upon certain attributes, for example: sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities?
  • If the content includes any reference to violence, sex, sexuality and nudity, are the references justifiable in the context or sensitive to the relevant audience?
  • If any of the content is aimed at children aged 14 years or younger, does it comply with the Australian Association of National Advertisers Code of Advertising to Children?
  • If any of the content relates to motor vehicles, does it comply with the Federal Chamber of Automotive Industries Code of Practice relating to advertising for motor vehicles.

3. Do I have sufficient supporting evidence?

  • Is all supporting evidence/information contained in the advertisement genuine?
  • Is it also impartial and does it reflect an expert evaluation of the claims?
  • Is the supporting evidence consistent with the main claim?
  • Do the people whose endorsement seems to be given, really intend to endorse the product?
  • Is there written approval of anyone referred to as sponsoring or endorsing or associated with the product?

4. Are my qualifiers and disclaimers sufficient?

  • Is clear prominence given to qualifications?
  • Is the disclaimer clearly part of the main body of the advertisement?
  • Is its size/prominence such that it is easily read and understood?
  • Is the wording of the qualifier or disclaimer unambiguous?
  • Has the consumer all the information they need before buying?
  • Does the qualifier or disclaimer support, not contradict, the main claim?

5. Is the overall impression correct?

  • Is the product or service advertised, the product or service shown?
  • Are all elements of the advertisement (copy, visuals, music and tone) consistent with the main claim?
  • Is the overall impression you are giving consistent with the facts?

6. Is the medium of the message appropriate?

  • Can the selected media carry the complexity of the message?
  • Can all the information required be included?
  • How is the target audience likely to receive the message and do you need to consider any special characteristics or vulnerability of the target audience>
  • Are you sure the selected media will not impact outside the target market?

7. Have I checked and checked again for errors or omissions?

  • Are you sure that there are no errors or any omissions that could create a false impression in the mind of the audience?
  • Does the overall impression of the advertisement provide the whole picture?  Ensure the impression that is given matches the facts.  Consider the overall impression to the ordinary person who is likely to have little or no knowledge about the subject matter being promoted.

Joe Kafrouni, Legal Practitioner Director, Kafrouni Lawyers

Disclaimer

The information provided by Kafrouni Lawyers is intended to provide general information and is not legal advice or a substitute for it. The parties to a partnership should always consult their own legal advisors to discuss their particular circumstances. Kafrouni Lawyers makes no warranties or representations regarding the information and exclude any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Lawyers.

Liability limited by a scheme approved under professional standards legislation.