What you need to know:
- Be careful to be accurate in all forms of advertising.
- When stating you have "the most" or are the "highest rated" you need to be able to provide evidence on how you have come to this conclusion.
- If you use an asterisk to qualify your advertisement, make sure that both it and the content next to the asterisk are easy to see and read.
In the recent case, REA Group Limited ("REA") v Fairfax Media Limited ("Domain") FCA 91, Domain was found to be in breach of the Australian Consumer Law (ACL) for making misleading and deceptive representations (or representations likely to mislead and deceive) in two of a number of advertisements run in February 2016.
The advertisements in question promoted the Domain app as being the best, most highly rated app, with the most listings, in contrast to competitor apps such as REA's realestate.com.au app. The decision turned largely on an analysis of:
- how a largely uninformed cross section of the public would respond to the advertising; and
- whether the claims could be dismissed as "puffery", which is common within the advertising industry.
The Court held that the advertisements had to be considered through the eyes of:
- members of the public with an interest in the property market in NSW, Victoria and Queensland; and
- real estate agents who lease or sell property in NSW, Victoria, and Queensland.