What are the elements of misleading and deceptive conduct?

What are the elements of misleading and deceptive conduct?

What are the elements for establishing a cause of action in misleading or deceptive conduct?

• The conduct was engaged in ‘in trade or commerce’; and.
• The conduct must have been misleading or deceptive or likely to mislead or deceive.

Is misleading and deceptive conduct a crime?

It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. This law applies even if you did not intend to mislead or deceive anyone or no one has suffered any loss or damage as a result of your conduct.

Why is misleading and deceptive conduct bad?

Misleading and deceptive conduct can lead to civil actions including: Having to pay compensation orders. Awards in damages against you (which means you have to pay more than just compensation for the other side’s loss). Being disqualified from operating a business.

Can silence be misleading or deceptive conduct?

A representation can be express or implied, written or oral, or partly written and partly oral. In short, the ‘conduct’ will be assessed based on all the relevant facts and circumstances. Hence, and as a further complication, silence can also constitute misleading or deceptive conduct.

Who can complain about misleading or deceptive conduct?

If you wish to make a complaint about an advertisement you have seen or heard in NSW, you can contact Ad Standards by phone (02) 6173 1500 or make a complaint online.

What constitutes unconscionable conduct?

To be considered unconscionable, conduct it must be more than simply unfair—it must be against conscience as judged against the norms of society. Business behaviour may be deemed unconscionable if it is particularly harsh or oppressive, and is beyond hard commercial bargaining.

Can you sue for misleading and deceptive conduct?

Your company will still be held legally responsible for misleading and deceptive conduct. Misled parties will generally always sue the relevant company directly, rather than its employees who engaged in the conduct.

Can silence be misleading?

Silence can be misleading or deceptive when, for example: one person fails to alert another to facts known only to them, and the facts are relevant to a decision. important details a person should know are not conveyed to them. a change in circumstance meant information already provided was incorrect.

Can silence be a misrepresentation?

SILENCE. Generally, silence is not a misrepresentation. The effect of the maxim “caveat emptor” is that the other party has no duty to disclose problems voluntarily. Thus if one party is labouring under a misapprehension there is no duty on the other party to correct it.

What is an example of unconscionable conduct?

Examples of unconscionable behaviour not explaining a contract properly to a consumer that does not speak English well or has a learning disability. the use of undue influence, pressure or unfair tactics to induce someone to sign a blank or highly unfavourable contract. making false claims about the real cost of a loan.

What is a special disadvantage unconscionable conduct?

What constitutes a special disadvantage can take a variety of forms and may include: poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary.

What is misleading and deceptive conduct in Australia?

Misleading and deceptive conduct is conduct that is likely to mislead or deceive. Section 18 of the Australian Consumer Law (ACL), provides that “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

When is conduct likely to mislead or deceive?

“Conduct” is likely to mislead or deceive if there is a “real or not remote chance or possibility regardless of whether it is less or more than fifty per cent” that a reasonable person in the circumstances would be misled or deceived. 10 Can silence or non-disclosure be misleading or deceptive?

How to know if a business is misleading or deceptive?

It is important to look at how the behaviour of the business affects the audience’s impression of a good or service. When deciding if conduct is misleading or deceptive, or likely to mislead or deceive, the most important question to ask is whether the overall impression created by your conduct is false or inaccurate.

When to seek damages for misleading and deceptive conduct?

If a person breaches section 18 of the ACL by engaging in misleading and deceptive conduct, the consumer who has suffered loss or damage as a result of that conduct will have a right under section 236 of the ACL to seek damages.