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In trade or comments: blog post confirmed to be made in trade & commerce

The recent decision of the Full Federal Court in Fletcher v Nextra Australia Pty Ltd has confirmed that a post on an online blog was made in trade or commerce and was misleading and/or deceptive in contravention of the Australian Consumer Law (“ACL”)

The post in question was published on the “Australian Newsagency Blog” run by Fletcher, a 50% shareholder and director of NewsXpress Pty Ltd. The blog was read by newsagents and other persons associated within the newsagency industry and the post, entitled “Nasty Campaign from Nextra Misleads Newsagents”, was critical of the contents of a flyer circulated by NewsXpress’s competitor, Nextra, (the “Post”). The blog was not directly associated with the NewsXpress (which had its own blog) but was used by Fletcher to post articles that, for example, praised the strategies and benefits of joining NewsXpress and promoted Fletcher’s newsagency software.

The appeal confirmed the Trial Judge’s finding that the Post was conduct in trade or commerce despite the fact that it was not posted on behalf of NewsXpress and was posted on a blog not directly associated with NewsXpress.

The Trial Judge found that the posting of the relevant article was not conduct distinct from Fletcher’s relevant, actual or potential trading or commercial relationships and that, whilst it was not posted on behalf of NewsXpress, it was clear that it was posted to defend NewsXpress from what Fletcher saw as potential poaching of franchisees by Nextra.

The Full Court reviewed the authorities on this issue and held that statements related to the manner in which Nextra conducted its business and alleged that Nextra had engaged in conduct which was improper and to the detriment of other newspaper franchises including his own and thereby sought to influence the existing and potential franchisees of Nextra.

This case, together with Madden v Seafolly (2014) 313 ALR 1 (where comments made on a personal Facebook page were held to be made in trade or commerce and in contravention of the ACL), demonstrates that companies and business owners should be alive to the fact that the ACL may apply to posts on social media and blog sites even if posted using a personal account. This is particularly the case where the posts could be seen as an attack on another business and to not be made by an independent commentator.

Cowell Clarke has extensive experience in dealing with ACL and misleading and deceptive conduct claims. Please contact us to discuss blog or other social media posts, made by or about your company, which you believe may contain representations that are misleading or deceptive.

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