Deceptive Conduct and False Representations – Consumer Law

*THIS BLOG DOES NOT CONTAIN LEGAL ADVICE AND SHOULD NOT BE TAKEN AS SUCH. THIS DOES NOT COVER ALL ISSUES RELATING TO CONSUMER LAW AND FURTHER ADVICE SHOULD BE SOUGHT FROM A LEGAL PROFESSIONAL ON THIS ISSUE*

Advertising Sex Work

Advertising online has become the primary way for sex workers to advertise their services. No longer are we relying on the sex services section of our local newspapers (though, this still does happen). Sex workers are now selling services online and it is accessible to an unlimited amount of people who click on the website. This means the chances of breaching consumer law has expanded greatly because you now have a greater audience.

You can say whatever you want but you need to be aware that consumer law applies – to you. I am not just talking about you (escort directory) or you (sex worker website)…..but you, on twitter.

What Are The Rules?

It differs as to whether you are a corporation or if you are a business or individual.

For corporations, you are bound by the Australian Competition and Consumer Act 2010 (Cth) and if you breach that Act, the Australian Competition and Consumer Commission (ACCC) is responsible for penalising you or taking other necessary action.

For business and individuals, you are bound by your State legislation. In New South Wales, for example, this is the NSW Fair Trading Act 1987 (NSW). In New South Wales, the NSW Fair Trading are responsible for administering this Act.

What Should I Be Concerned About?

If I was advertising online, I would be primarily concerned with the consumer law provisions relation to (1) misleading and deceptive conduct; and (2) misrepresentations.

Misleading and Deceptive Conduct

‘Conduct’ includes actions and statements, such as:

  • advertisements
  • promotions
  • quotations
  • statements
  • any representation made by a person.

Business conduct is likely to break the law if it creates a misleading overall impression among the intended audience about the price, value or quality of consumer goods or services.

So, for example, if you post photos which are not you, but are fake photos, then you are creating a misleading overall impression among the intended audience about the nature of the consumer services.

If you, as an escort directory, put some form of verification on a photo that it is of the person you are advertising, and it turns out that the sex worker isn’t actually that person in the photo, then be warned – that is conduct which is misleading and deceptive.

If you, for example, state that you provide certain “services” on your website and you do not offer these services when it comes time to transact, you could be in breach of the misleading and deceptive provisions of the legislation stated above.

Whether you intended to mislead or deceive is irrelevant; what matters is how your statements and actions – your ‘business conduct’ – could affect the thoughts and beliefs of a consumer.

Puffery

There is an exception to misleading and deceptive conduct and that is that your behaviour is “mere puffery” – but do not rely on this defence too much as it will all depend on the particular circumstances of the case. ‘Puffery’ is wildly exaggerated, fanciful or vague claims that no reasonable person could possibly treat seriously. So, by stating that “I AM THE BEST ESCORT IN SYDNEY”, I would consider this puffery and you may not get yourself in trouble by making this statement. It’s wildy exaggerated and even basic consumers would consider that calling yourself THE BEST in the industry is somewhat fanciful.

Ramifications of Misleading and Deceptive Conduct

Misleading and deceptive conduct may lead to civil remedies including:

  • injunctions
  • damages
  • compensatory orders
  • orders for non-party consumers
  • non-punitive orders
  • adverse publicity
  • disqualification orders.

Put simply, its going to cost you a lot of money – so don’t do it. Any consumer or person of the public can report you to the body that administers consumer law in your state (or if you are a corporation – the ACCC).

Misrepresentations

It is unlawful to make false claims or misleading descriptions:

  • about the supply or possible supply of consumer goods or services
  • when promoting the supply or use of goods or services.

For instance, you cannot make false or misleading representations about:

  • the standard, quality, value or grade of goods or services – fake photos, incredibly photoshopped photos…
  • a particular person agreeing to acquire goods or services – endorsement by someone in the industry when they have not used your services.
  • testimonials by any person relating to goods or services – FAKE REVIEWS!
  • the sponsorship, approval, performance characteristics, accessories, benefits and uses of goods or services; and
  • the price of goods or services – charging more than you have advertised.

Ramifications of False Representations

In NSW, and in many states, making false or misleading representations is an offence.

In NSW, the maximum fine is $220,000 for an individual and $1.1 million for a body corporate. Criminal penalties for the same amount apply.

Before prosecution, fair trading agencies can:

  • require a business to provide information that will support claims or representations made about goods or services
  • accept court-enforceable undertakings
  • issue public warning notices.

I think the risk of a $220,000 is sufficient enough warning to not make false representations.

How To Avoid Consumer Law Problems

  • Be honest in your statements that you make on twitter, on your website or other platforms;
  • If you are an escort advertising site, do not use fake photos on girls’ profiles;
  • if you are an escort advertising site, do not verify photos if you actually have not seen the girl in person to know it is her in the photo;
  • if you are a sex worker, do not outline your list of services and then decide not to provide those services to particular clients. If you want to pick and choose what services you provide and to whom, do not list it as a service and offer it when the transaction commences or in the communication with the client prior to the booking.

If you have any further queries about this area of law, please do not hesitate to contact me.

KVA

@KVALEGAL

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