Luật học - Chapter 24: Advertising law

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Advertising lawChapter 24Learning objectivesAt the end of this chapter you should understand:the nature and impact of advertising on the market placethe significance of advertising on consumer demandthe role of the Australian Association of National Advertisersthe contents of the Advertiser Code of Ethicsthe role and function of the Advertising Standards Board and the Advertising Claims Boardthe statutes that regulate advertising practicesthe common-law principles that regulate advertising practices and their relationship to self-regulation.IntroductionAdvertising is a critical element in the marketing of goods and services.Advertising tells consumers about goods and services.Benefits of advertising activityProvides information that consumers need to make appropriate choices regarding the goods and services they will acquireMay allow new competitors to enter the marketProvides employment to many in the creative industriesMay be entertainingDisadvantages of advertisingWithout regulations:Can provide false informationMay discourage smaller competitors from entering the marketCan offend the publicMay invade privacyCan be defamatoryCan infringe on intellectual propertyAdvertising self-regulationAdvertising Standards Bureau LtdAANA Advertiser Code of EthicsAANA Code of Advertising to ChildrenFederal Chamber of Automotive Industries Voluntary Code of Practice for Motor Vehicle AdvertisingThe Advertising Standards BoardThe Advertising Claims BoardAdvertising Federation of Australia Code of PracticeAANA Advertiser Code of EthicsA voluntary code to ensure that all advertisements are legal, decent, honest and truthful, and that they have been prepared with a sense of obligation to the consumer and society, and a fair sense of responsibility to competitors. AANA Code of Advertising to ChildrenObject is to ensure that advertisers develop and maintain a high sense of social responsibility in advertising to children in AustraliaMatters dealt with include:avoidance of advertising which sexualises childrensafetyparental authoritysocial valuesalcohol food and beveragesplacement of advertising away from unsuitable communication.The Advertising Standards BoardMaintains standards of taste and decency in advertisingComprising members of the public who are chosen to reflect current community standardsCan request modification or discontinuance of the advertisementIf non-compliance with request, can refer case report to the appropriate government agency or forward the case report to media proprietorsThe Advertising Claims BoardAlternative dispute resolution for:Truth and accuracy of advertisingBreaches of AANA Advertising Code of EthicsThe benefits of this system are that it reduces the cost and time involved in court proceedings.Composed of variable panels of people chosen from the Advertising Standards Bureau Register of Legal Practitioners.Advertising Federation of Australia Code of PracticeStatement of ethicsCode of practice (for member agencies’ relationship)Other voluntary codes regulating advertisingDirect marketing:ADMA Code of PracticeAustralian Press CouncilAustralian Broadcasting AuthorityFederation of Australian Radio Broadcasters (FARB)Federation of Australian Commercial Television Stations (FACTS)ADMA Code of PracticeAdvertising Direct Marketing Association (ADMA) Code of Practice provides rights for consumers:Seven-day cooling-off periodIndependent code authority with consumer representativesAdoption of National Privacy Principles established by the federal Privacy CommissionerImposition of limits on telemarketingCompulsory use of a system that allows consumers to register their decision not to receive direct marketing offers from ADMA membersStatutory regulation of advertising—Australian Consumer LawACL Section 18: prohibition on misleading and deceptive conduct or conduct likely to mislead and deceive by persons engaged in trade or commerceRelevant examples may include:comparative advertisinguse of celebrities in advertisingsimilar or identical brands or business names.Matters to consider:What is the relevant target audience of the advertisement?What message is being conveyed to the target audience? Is the message true or false?Australian Consumer Law—Section 29: false representationsACL Section 29: prohibition on making false or misleading representations in connection with the supply or possible supply or promotion of goods and servicesS29(1)(a)& (b)—that goods or services are of a particular standard, quality, value or gradeS29(1)(c)—that goods are new S29(1)(e)&(f) —concerning testimonials or purported testimonials relating to the goods or servicesSection 29—false representations (cont.)S29(1)(h) —that a person/corporation has a sponsorship, approval or affiliation they do not haveS29(1)(i) —with respect to price of the goods or servicesS29(1)(k) —with respect to place of origin of the goodsS29(1)(l) —concerning the need for any goods or servicesS29(1)(m) —concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedyAustralian Consumer Law (cont.)ACL Sections 33 & 34: prohibition on conduct that is likely to mislead the public as to the nature, the manufacturing process, characteristics and suitability for their purpose or quantity of any goods or services by a person in trade and commerceRemedies for breaches of the ACL provisions may include injunctions, corrective advertising orders, substantiation notices, and damages.Bait advertisingSection 35 of the Australian Consumer LawOccurs when goods or services are advertised at a particular price and the advertiser is not able to supply the goods and services in reasonable quantities for reasonable periods of time.The common law and advertisingLaw of contract:Breach of contract (where purchaser can show he or she entered a contract based on a false statement) Law of torts:Tort of deceitNegligenceTort of injurious falsehoodPassing offDefamationRight of privacyRight of publicityTort of deceit The representation made in the advertisement is one of fact and not an opinion, prediction or promise.The representation is false.The representation induces the plaintiff to enter into a contract.The advertiser made the representation knowing it to be untrue, or was reckless as to its truth. Tort of injurious falsehoodSlander of goods:A false statement is made about the plaintiff.The statement is disparaging of the plaintiff’s goods or services, or method of carrying on a business, or title to property.The statement is made maliciously.The plaintiff suffers, or is reasonably likely to suffer, a loss of business. Passing offThe tort of ‘passing off’ is committed where one trader causes customers and potential customers to incorrectly associate their products or business with those of another trader or person.