Adverting is a very powerful tool. It is able to influence potential consumers in a short amount of time with a lot of information. The law becomes involved when the bargaining position is unbalanced, this means that when the seller is using unfair or untrue advertising in order to persuade the consumer. The law seeks to protect the consumer. Also because of increasing technologies advertising has become much more common eg present in television, radio, billboards, buses and more recently the Internet, e-mail and SMS.
Because it has become so much more common, advertising affecting almost everyone through constant bombardment and has the ability to use unfair tactics on the consumer, the consumer needs protection by the law, and this protection must be efficient, that is why I intend to evaluate consumer protection in relation to advertising. I intend to first find out all the statutory means of protection through research of a variety of sources and to them evaluate them myself. Firstly there are textbooks, these are very good at getting the initial concepts, but lack the depth required for this task.
I intend to get books that specialise in consumer protection so that I will get more detailed information such as cases and legislation. Also specialised books can give me a direct insight into the legislation, so I can evaluate provisions. Media reports will also be required as they can back up points and also can give specific information about advertising laws and how effective the law is so they can be very useful to look at. Also media reports on advertising should be very accessible as advertising is often publicised because it is well known by most people.
I also intent to get information from website’s of statutory bodies, as I want to include a section of statutory bodies on advertising, these websites will give me information on there aims, powers and jurisdiction so I can evaluate them. I have looked at a variety of text books, not just my school ones (see bibliography). Most of them are very brief on the subject of advertising but are useful for my research as a starting off point as they outline the two main pieces of legislation the Trade Practise Act 1974 (Cth) and Fair Trading Act 1987 (NSW), and their provisions.
There provisions are very comprehensive (containing areas such as Bait and Tackle, puffing, misleading and deceptive conduct, unfair trade practice or tactics, advertising likely to deceive is still unlawful and false descriptions). These comprehensive provisions are effective in defining various types of practice in legislation and are easier to prove (rather than proving advertising was unconscionable or unfair), saving the courts resources and being more likely to succeed in prosecution, effecting the enforcability of the law.
Also worth noting is the effectiveness of these acts in actually protecting consumers, as it is very common that these actions (generally section 52 of TPA) is used to sue/damage other companies for deception of their customers, but this can really be an attempt to “eliminate” their competition eg Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (1999) The variety of pamphlets that I have looked at are mainly from the Office of Fair Trading and address the effectiveness of this body. It is useful for my research as I intend to make a section in my essay on the effectiveness of statutory bodies such as this one.
It is good for my research as it gives me first hand knowledge of the body. It is published by the OOFT and is trying to educate the consumer on what is unlawful in terms of advertising and what isn’t. This is effective as it not only prevents consumers from being put in the situation where they need to take a body to court to seek damages (as they are aware of common unlawful tactics), also saving money due to the expense of court proceedings but also makes it easier for consumers to recognise misleading or deception advertising and file a complaint to a body that can deal with this matter eg ACCC.
The Office of Fair Trading also encourages alternative mechanisms for disputes as it is cheaper and can be just as effective, by giving advice to consumers on such matters. Another statutory body whose website I visited was the ACCC (Australian Competition and Consumer Commission). Here I got information that is useful for my research as it told me about the type of cases that they tend to prosecute. Generally they are ones that are very deceptive, and severely disadvantage either a lot of consumers or another company.
This is effective as it takes cases that are more important (ie effective with resource efficiency) and reflects a wide range of society views (by taking cases that many consumers have been disadvantages) and being able to seek reform (by removing the advertisement, making corrections to it (with an apology) or seeking damages to compensate the consumers). The existence of the websites (as well as pamphlets) show that the bodies are easily accessible to the public.
I have also got some books that deal specifically with consumer law. The first one “Consumer Protection Law” by Eileen Webb comprises only of cases (which is useful for my research as a wide range of cases are required) and can be useful for pointing out the effectiveness of the legislation (and even statutory bodies) eg in the case ACCC v Nissan Motor Co (1998) where Nissan’s advertisement displayed the wrong model car, price and calling it an “end of year” price, even though this price was offered a while ago.
The company was sued only for $130,000. Which is a lot of money, but not considering the fact that this is a successful company (multi-national) and has breached the Trade Practicing Act 1974 (Cth) in 3 instances. This case demonstrates a lack of effectiveness of both the TPA and the ACCC, if the remedy was only a fine, a small one at that, (and not a corrective advertisement with an apology). Another book specialising on it is called “Consumer Protection Law”, by Goldring (more authors see bibliography).
This book is useful for my research as it has an entire section of advertising, and specifies many of the section numbers of the TPA and what they contain (and legislation numbers are required). It also contains sections on common law and points out how it is ineffective, compared to legislation – ie it is slow to change, and cant combat new forms of adverting as quick as legislation can eg the recent Spam Act 2003 (Cth).