Advertising your School: Does your school’s promotional material breach the Australian Consumer Law?
Your school would undoubtedly undertake some form of advertising to promote your education services and drive enrolments to your school.
However, have you ever considered whether your advertising practices comply with the requirements of the Australian Consumer Law?
What is the Australian Consumer Law?
The Australian Consumer Law (ACL) is a national law that aims to protect the rights and needs of consumers and ensure fair trading in Australia. The ACL is part of the Competition and Consumer Act 2010 (the Act).
The ACL covers a range of trade practices to ensure businesses engage in appropriate conduct.
Protections and prohibitions within the act are aimed at preventing:
– Misleading and deceptive conduct
– False and misleading claims
– Inappropriate advertising and selling techniques
– Goods/services being sold that are not fit for purpose
As a school is providing a service in trade or commerce, its practices will be caught by the provisions of the ACL.
Advertising and the ACL
Advertising and selling practices have evolved rapidly in recent years, and schools are not immune from these changes.
School advertising no longer occurs solely through traditional print media, but includes wide ranging online content such as email, social media, apps, review platforms and search engines.
We have explored below some of the protections and prohibitions included in the ACL, to help ensure your school’s advertising practices do not breach the relevant requirements.
Misleading and Deceptive Conduct
It is illegal to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers. This applies even if you did not intend to mislead or deceive anyone or no one has suffered any loss or damage as a result of your conduct.
When deciding if conduct is misleading or deceptive, or likely to mislead or deceive, a determination will be made on whether the overall impression created by the advertisement is false or inaccurate. All relevant circumstances will be taken into consideration, such as the entire advertisement or statements made by a representative of your school.
If an ad does contain a misleading statement about the education programs provided by your school, your school may be liable for breaching the terms of the ACL. Such a breach may result in infringement notices of up to $13,320 or, in extreme breaches, civil penalties of up to $10,000,000.
False or Misleading Claims
It is also unlawful for a business to make false or misleading claims about goods or services. There is, of course, significant overlap between the prohibitions on misleading conduct and the rules against false claims. They are, however, distinct concepts giving rise to separate causes of action.
A misrepresentation is a claim or statement, no matter the form it takes or platform it is published on, that is false or misleading made by one party to another. Again, a breach may result in infringement notices of up to $13,320 or, in extreme breaches, civil penalties of up to $10,000,000.
You should also be aware that all goods and services purchased automatically have consumer guarantees attached to them under the ACL. These guarantees provide a minimum standard for goods and services that is standard across Australia.
Your school’s consumers (students and families) have guarantees that education services your school provides to them will be provided with due care and skill and will be fit for their intended purpose. Importantly, consumer guarantees cannot be excluded by contract so these minimum guarantees apply irrespective of what your enrolment contract states.
Unfair Contract Terms
As we have previously written about, a term of a ‘standard form consumer contract’ has no effect at law if the term is unfair.
As there is no scope for the student/family to negotiate the terms of your school’s enrolment contract, it is likely that it would be considered a standard form contract, enlivening the application of the ACL’s unfair term provisions.
A contract term will be unfair if it:
- would cause a significant imbalance in the parties’ rights and obligations
- is reasonably necessary to protect legitimate interests of one of the parties, and
- would cause detriment if applied or relied on.
Tips for Your School’s Advertising
When preparing and publishing advertising material for your school, you should ensure that:
- it does not contain any false statements about the services/programs offered at your school;
- it does not guarantee any level of performance or standard to be achieved by students at your school;
- it does not inflate the school’s performance in a particular area;
- no false reviews or testimonials are posted to any online platform, even if your school did not post them.
How can Brennan Law Partners assist?