Outside of completely locking yourself out into the woods and having no electricity or human contact, exposure to advertising in some form is an inevitably. One tactic that advertisers of goods or services use when trying to obtain our business, is the use of testimonials from either ‘Sam’ down the road, or ‘Ms Reality Show Starlet’, purporting that if us the consumer, use a specific product or service we’ll become fabulous and be completely satisfied with our lives just like the person in the ads – or a message of a similar ilk. Some people out there may be curious if there are laws which relate to testimonials regarding goods or services – and there are, and can be found in the Australian Consumer Law (the ACL). Additionally, there are also provisions that a person must not make a false or misleading representation – that the person making the representation – has a sponsorship, approval, or affiliation with a good or service.
What are the provisions relating to testimonials of goods or services?
Under s 29(1)(e) and (f) of the ACL, prohibits a person who is involved in trade or commerce, or is connected with the supply, or possible supply of goods or services, or with the promotion of the supply or use of a good or service to:
• make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or
• make a false or misleading representation concerning:
o a testimonial by any person; or
o a representation that purports to be such a testimonial relating to a good or service.
The s 29(1)(e) and (f) provisions in the ACL, and elaborated in the Secondary Explanatory Memorandum, apply to all testimonials irrespective of whether or not the representations made were genuine, and an example being, where a legitimate testimonial has been misrepresented or misquoted, or where a testimonial which is fictitious – is published.
One of the more interesting aspects of the provisions relating to false or misleading representations, is that s 29(2) of the ACL, reverses the onus of proof towards the person who is accused of making a false or misleading representation to adduce evidence that the representation is not misleading – rather than requiring the oversight body to show that the representation is false or misleading. Therefore, if an accused fails to adduce evidence that the representations concerning testimonials as stated in s 29(1)(e) and (f) is false or misleading, will result in the representation being found to be misleading.
The overarching aspect of the reversing of the onus of proof is that the person has to show evidence that the representations made about the goods or services is valid.
False or misleading representation: the person making the representation, has a sponsorship, approval, or affiliation with a good or service
Under s 29(h) of the ACL, false or misleading representations that a person making the representation has sponsorship, approval, or affiliation is prohibited. Guidance as to how the provision operates can also be found in the Second Explanatory Memorandum which states:
“A representation that the person making the representation has sponsorship, approval or affiliation could cover, for example and without limitation:
• representations that the person is in some way, sponsored by, approved of or affiliated with another person or entity. This could include persons or entities not engaged in trade or commerce, such as charities, religious institutions, educational institutions, professional and trades bodies and governments.
• representations that a person or other entity has sponsored, approved of or extended an affiliation to the person, including representations that such an approval is a formal or informal endorsement, certification, qualification or other indication or approval made by a person or entity. This could include persons or entities not engaged in trade or commerce.”