Australian website operators should be particularly wary of breaching Part V of the Trade Practices Act 1974 (the TPA), along with the various Fair Trading laws of each state that generally mirror the TPA. These prohibit misleading or deceptive conduct, including the making of false or misleading representations. You should be aware that it is unnecessary to prove the conduct actually misled or deceived anyone, just as it isn’t necessary to prove intention to mislead and deceive—it’s sufficient if the public is likely to be misled or deceived.
Breaches of these areas of the TPA are punishable by fines of up to $1.1 million for corporations and $220,000 for individuals. The penalties imposed by Fair Trading laws vary from state to state but may be up to $110,000 for corporations and $22,000 for individuals. The usual array of legal remedies is also available to those who suffer as a result of such misrepresentations, including a claim for damages and injunctive relief.
In 2002, Toyota’s website came under the spotlight of the Australian Competition and Consumer Commission (ACCC). Toyota was slow to respond to the detection of errors on its website relating to the features of one of its products. Following an ACCC investigation, Toyota undertook to periodically audit its website and compensate buyers who were misled.
It’s not only large businesses that need to use caution. In 2005, a New Zealand restaurant was fined $3,000 plus court costs following a breach of New Zealand’s Fair Trading laws. This arose from a lack of action taken by the owner to correct various misrepresentations on the restaurant’s website about the availability and price of certain meals on the menu.
The ACCC has advised businesses advertising on the internet to carefully and systematically weed outdated material from their websites. The potential reach of any misleading information means that it is not enough for a website operator to claim that it did not have time to update its website, or that it did not have the technical knowledge to do so.
As with anything electronic, websites can develop problems. If you are not technically savvy and your website is an important part of your business, then you should enter into a website maintenance agreement. This would usually be with the website designer, or a similarly qualified third party. A periodic review of the content, as well as checking that all links and structure are correctly operating, can help maintain a professional image and continued customer satisfaction, as well as minimising the risk of complaints.
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