Bartier Perry on the The Australian Competition and Consumer Commission (ACCC)
The Australian Competition and Consumer Commission (ACCC) remains committed to enforcing the Competition and Consumer Act 2010 and the Australian Consumer Law (ACL). In this update, we will highlight recent cases and provide important updates since our previous bulletin on the ACCC’s consumer law enforcement actions.
Case 1: ACCC v Booktopia Pty Ltd [2023] FCA 194
In March 2023, the Court found Booktopia guilty of breaching the ACL by engaging in deceptive conduct and making false representations about consumer guarantee rights. Booktopia falsely claimed that consumers had to notify them within two days of delivery to qualify for a refund or remedy, and that certain products like digital content and eBooks were non-refundable. These representations were misleading because consumer guarantee rights cannot be excluded for products purchased in Australia. As a result, Booktopia was ordered to pay $6 million in penalties, publish corrective advertising, and establish a consumer law compliance program.
Case 2: ACCC v Employsure Pty Ltd [2023] FCAFC 5
Employsure, a private company offering employment relations and workplace health and safety advisory services, was found to have made false representations through Google Ads, misleadingly claiming affiliation with government agencies. In 2021, the Full Federal Court upheld the ACCC’s appeal, and Employsure was ordered to pay $1 million in penalties. However, the ACCC successfully appealed for a higher penalty, with the Court recognizing the seriousness of misrepresenting government sponsorship or approval. The penalty was increased to $3 million, and Employsure was also directed to cover the ACCC’s costs.
Case 3: Australian Competition and Consumer Commission v Mercedes-Benz Australia/Pacific Pty Ltd [2022] FCA 1059
The ACCC initiated legal proceedings against Mercedes-Benz for failing to use appropriate language in contacting customers about a compulsory recall notice for faulty Takata airbags. Mercedes-Benz’s recall notices downplayed the seriousness of the issue, stating it was merely a precaution or that other manufacturers’ airbags had no faults or caused harm. These representations were inaccurate, given the global incidents of deaths and injuries related to defective Takata airbags. Mercedes-Benz was found to have contravened the ACL’s mandatory recall notice requirements. The company was ordered to pay penalties of $12.5 million, contribute $100,000 to the ACCC’s costs, and commit to compliance measures for recall obligations.
Case 4: Australian Competition and Consumer Commission v Uber B.V. [2022] FCA 1466
The ACCC took legal action against Uber for misleading representations about fares and cancellation fees. Uber’s policy allowed customers a 5-minute free cancellation period, but a pop-up window indicated that a small fee might apply if the driver was already en route. Uber admitted that this was misleading. Additionally, Uber’s fare estimates for their ‘Uber Taxi’ service in Sydney exceeded the actual taxi costs, potentially discouraging customers from choosing taxis over other Uber services. Uber acknowledged this conduct as well. The Court ordered Uber to pay $21 million in penalties and contribute $200,000 towards the ACCC’s costs.
United Florists Pty Ltd and Elysium Marketing Pty Ltd
The ACCC issued a warning to the online florist industry regarding false or misleading representations about the location of online florists. Some online florists gave the impression of being physical stores when they operated through independent third-party florists or central warehouses. United Florists Pty Ltd and Elysium Marketing Pty Ltd provided Court enforceable undertakings for misleadingly advertising ‘Lily’s Florist’ as a local florist when it was not the case. These parties committed to refraining from making further misleading representations and implementing a compliance training program, including ACL
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