Misleading or deceptive conduct means to either intentionally or unintentionally mislead or deceive a customer into buying a product or service. It is also misleading conduct if something you say has the potential to mislead.
Real case study: An internet company offered ‘unlimited’ download plans for users who signed up to their services. However, the plans were subject to major limitations including speed reductions when a certain amount of data was downloaded. The court found that the use of the term ‘unlimited’ in relation to plans that were subject to major limitations that were not disclosed was misleading and deceptive.
Real case study: The Federal Court found that a car manufacturer made false or misleading claims in advertisements for one of its vehicles.
The manufacturer represented that the vehicle had seven seats as a standard feature when in fact five seats was the standard configuration.
The manufacturer also represented that the ‘drive away’ price for the vehicle was $79 990 when in fact a purchaser would have to pay additional fees or charges for dealer delivery, statutory charges and two additional seats.
Example: A company sells mobile phone plans and accepts payment for mobile telephone services despite knowing it is not able to supply the services as the telecommunications carrier has little or no mobile coverage in the customer’s area. This is likely to be a breach of the ACL.
If you do accept payment in advance, you must supply the goods or services within the time you have specified, or within a reasonable time, if no time is specified.
Conduct that is “unconscionable” will generally involve a situation where an unfair advantage has been obtained. This is a situation where a party takes advantage of its position to obtain benefit where the customer has a special disadvantage.
Some customers may be disadvantaged or facing a difficult situations that could make them vulnerable to make decisions. A few examples maybe but not limited to:
The ACCC instituted proceedings against Craftmatic Pty
Ltd alleging that Craftmatic had acted unconscionably
against senior citizens in the door-to-door sale of beds by
taking advantage of the commercial inexperience of elderly
and housebound consumers through high pressure sales
Between August 2005 and at least 1 June 2008,
Craftmatic used misleading and unfair tactics to convince
elderly people to agree to a home presentation by one of
Craftmatic’s sales representatives. Once at the consumer’s
home, an elaborate and well rehearsed sales process was
used to persuade the consumer to buy a Craftmatic bed,
in some cases costing more than $10 000.
While some consumers were happy to buy a bed, others
who indicated that they either didn’t want, or could not
afford, to buy a bed were subjected to a barrage of unfair
sales techniques to change their mind.
The Federal Court of Australia declared, by consent, that
Craftmatic’s method of promotion and sale consisted
of steps designed, scripted and conducted to unduly
influence potential customers and to create and take
advantage of an unequal bargaining position.
The Federal Court ordered injunctions for a period of
seven years restraining Craftmatic from a wide range
of conduct that was found to be misleading and
unconscionable, in breach of the Trade Practices Act
(renamed Competition and Consumer Act 2010 on
1 January 2011).
Real Case Study:In 2013 the Federal Court ordered AGL to pay penalties of approximately $1.5 million after several of its sales agents failed to leave a number of
consumers’ premises when requested
to do so. One consumer had a do
not knock sign on the front door that
informed sales people to leave the
premises. The sales person ignored the
sign and attempted to make a sale.
The Court also found that the sales
people had engaged in misleading
and deceptive conduct regarding the
purpose of their visit
An agent on calls must always listen to warnings if a customer may seem “vulnerable”. As an agent on call you the following points are some examples that will identify a vulnerable customer:
if the customer wants to “think about it”, “talk to a relative” or “call back at a convenient time” allow them to do so
If you are worried or unsure if the customer is sounding unconscionable, seek advice from a Team Leader/Supervisor
As soon as the customer is identified as “vulnerable” do to market a product to them, they must either go to a store or the Power of Attorney must be contacted to discuss the offer.
Definition: A power of attorney or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor [Wikipedia]
The powers of attorney cover different areas of decision making:
1.Enduring power Attorney (financial) – allows you to choose someone to make financial and legal decision for you
2.Enduring power of Attorney (medical treatment) – lets you choose someone to make decisions about your medical treatment
3.Enduring Power of Guardianship – lets you choose someone who can make lifestyle decisions for you
4.General Power of Attorney – allows you to choose someone who will make specified financial and legal decisions for you. This power ceases if you lose the capacity to make you own decisions.
An agent will then request for the document to be emailed to us as proof prior to proceeding with the offer.
Harassment is conduct that may cause the customer distress, anxiety or agitation
Coercion occurs when unacceptable pressure is put on a customer to purchase a product or service. It can be physical (Including the threat of violence) or non-physical (e.g. emotional) restricting a customer from their freedom of choice
Real Case Study: Debt collector Panthera to pay $500,000 in penalties for undue harassment.
The Court held that Panthera harassed three consumers to pay disputed debts despite being advised that they were not liable for the debts and, in the case of two of these consumers, placed an incorrect default listing on their credit rating files.
The Court also ruled that Panthera misled one of the consumers by telling them they needed to pay Panthera $100 to have a default listing removed from their credit file, even though the credit default listing was incorrect and could have been removed for free under the Privacy Act.
“We took this case because of the concerning way Panthera dealt with these consumers who did not owe any money,” ACCC Commissioner Sarah Court said.
“All three consumers were subjected to repeated and intrusive calls from Panthera, and had to take multiple steps to prove they did not owe the alleged debt.”
“Businesses, particularly in the debt collection industry, are warned that harassing consumers is unacceptable under any circumstances and can result in significant penalties,” Ms Court said.
Panthera was also ordered by the Court to pay $100,000 as a contribution to the ACCC’s legal costs.
Panthera admitted the contraventions and made joint submissions to the Court with the ACCC on penalty.