Communications & Media
5. Important points and tips
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 23 Jun 2015
- A disclaimer is a term of a sales contract that seeks to exclude or limit the seller’s liability for misleading or deceptive statements.
- You must remember your disclaimer will only excuse potentially misleading or deceptive statements if it is displayed clearly and prominently.
- Writing a disclaimer in small print will not suffice.
- For example your business is likely to have engaged in misleading or deceptive conduct if it advertises that all of its stock is reduced by 50% but it states in small print that this excludes new season stock.
- Clearly exaggerated and unrealistic claims are not misleading or deceptive conduct as they are not intended to mislead or deceive the buyer.
- Statements such as “this moisturiser will change your life” or “we make the best pies in the world” are examples of representations that are not intended to be relied upon by the buyer.
- If your business accidentally advertises a product at the wrong price:
- you do not have to sell the product at that price;
- your business must remove that product from sale until the error is corrected;
- if an order for the product has already been placed, your business must advise the customer of the error;
- the customer must be given the choice to either keep the order at the correct price or cancel the order; and
- if the incorrect price was lower than the correct price, your business may of course honour the discounted price if you choose to do this.
- It can also be misleading or deceptive conduct if your product does not match its description.
- An example of this is where you have a TV commercial advertising a car that has 6 airbags but in actual fact it only has 5 airbags.
- Silence can be misleading or deceptive depending on the circumstances of the case.
- An example of this is where you sell a mobile phone but neglect to inform the buyer that it can only be charged with a US voltage converter.
- Promises, opinions and predictions can be misleading or deceptive conduct in some circumstances.
- This may apply where the person knew the statement was false or did not care whether the statement was true or false when making it.
- If the matter goes to court the judge will consider all the relevant circumstances including the impact the statement had on the customer.
- Certain organisations such as television stations, radio stations and newspaper publishers cannot be liable for misleading and deceptive conduct.
- This exemption does not apply to goods or services sold by the organisation or the publication of advertisements.
- Liability may arise where the organisation knew the advertisement that it published was misleading or deceptive.
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