Australian Competition and Consumer Commission v Employsure Pty Ltd (No 2) [2021] FCAFC 157
Consumer Law; misleading conduct; false representations; advertisements displayed in response to specified online searches
Facts: Google Ads is a service that allows suppliers of goods and services to place electronic advertisements for their products or services. The advertisements placed on Google Ads appear on the screens of computers, laptops, or smartphones when someone uses Google to search for specific kinds of products or services. Employsure placed six Google Ads advertisements for its products. Display of these advertisements was set to be triggered by searches for “fair work ombudsman”, “fair work commission”, “fair work australia” and other related search terms. The Australian Competition and Consumer Commission (ACCC) argued that that, by placing the ads in this way, Employsure wrongly represented to business owners that Employsure was affiliated with, or endorsed by, a government agency. The ACCC sought a declaration that Employsure had engaged in misleading or deceptive conduct in breach of s 18(1) of the Australian Consumer Law (ACL); and had made a false or misleading representation in breach of s 29(1)(h) of the ACL regarding approval or affiliation.
Issue: Did the placing of the Google advertisements constitute conduct in breach of sections 18 and 29 of the ACL?
Decision: The placing of the advertisements, triggered by the specified search terms, constituted both misleading conduct, and a false or misleading misrepresentation.
Reason: Employsure was a private company that had no affiliation with, and was not endorsed by, any government agency. The display of the Google advertisements, triggered by the specified search terms, in effect suggested the contrary, thereby giving rise to misleading conduct and false representations in breach of the ACL.