ACT Can a 'Fullstop' Make a Difference under Australian Consumer Law?

[Rod]

If these people are advertising on the web, the information is public and I can't see the issue with placing their ads here and raising sensible legal questions about it.

And remember that just because they threaten litigation, it doesn't mean they are correct. If they take you to court they run the risk that if they lose they not only pay your costs, but you can continue posting

BTW, what they are doing is not unique, been done before, many many times. This kind of behaviour predates the web by a few centuries

 

[Flightrisk]

Hi Rod, one page full of terms and conditions and disclaimers prevents me from uploading any of their content? Here's a small part:

"The content presented on this site may not under any circumstances be disseminated or distributed in any way including, but not limited to modifying, copying, reproducing, framing, uploading to a third party",

and then if I thought their banner was misleading, and caused me to lose money then there's this one:

"In addition the Company shall not be liable to you or any other person for any direct, indirect or consequential loss, damages or costs suffered by you or any other person as a result of using any product or program developed by the Company "

A good example of using a lawyer to draft clauses that allows you to claim anything you like and not be responsible? Of course, these terms, conditions and disclaimers are never prominently displayed.

Now the ACCC specifically state that,

"Businesses are not allowed to make statements that are incorrect or likely to create a false impression"

But when they protect themselves with the type of clauses pasted above....what hope has a consumer got?

 

[Flightrisk]

Thinking about this, I'll tread carefully and try and describe the exact circumstances of this case.

Background
Poster#1 (Director of the forums principal advertiser) launches a thread titled "The Perils of displaying one line statements*" ( * modified to not replicate the original exactly) wherein he headlines the post Peril #1, takes a Tweet generated by one of his competitors that claims a certain statistic. He goes on to name the competitor and use statistics to prove that the Tweet was false, summarises his post with this statement,
"Whilst the Promo expresses an opinion, the wording used could leave many consumers believing that such information is factual too?"
hence a Peril! Then says that he'll post more of these perilous examples in future posts.

Now I'm familiar with the principal advertisers website (a completely separate web site from the forum), wherein they promote their industry specific software and have a promo state, "Expert software. Profitable ???????. Guaranteed" (You'll have to guess at what ??? represents as I can't copy it for fear of breaching web site terms and conditions. Think of the gambling industry) and felt this was a bit ironic considering?

So I post:
Peril 2 possibly?

You read a promo for a ????? product that reads, "Profitable ???????. Guaranteed."

Whilst the Promo expresses an opinion, the wording used could leave many consumers believing that such information is factual too?

Dunno?

What do you think !#%$ (name of previous poster), seeing as you're an authority on the subject now, it seems?

This post is allegedly defamatory! I figure that 99.9% of readers (probably 5 persons as the post was up for less than an hour) wouldn't have any prior knowledge that the reference was one from Poster#1's website and I've made no reference to it. I never made a statement, just asked the poster a series of questions seeking an opinion. I could be accused of entrapment I suppose, but he shouldn't fear justifying the use of the term theoretically? I have had no published or unpublished communication with Poster#1 for at least a year until this post so there's no examples of malicious precedence in that period. Upon receipt of a private email taking offence to the post from Poster#1, I apologised in writing and offered to retract the post, but it had already been removed and me banned by the moderator. The next day Poster#1 wrote again, referred to his solicitors and that action will be taken.

Appreciate any feedback, and recommended options? If it's get yourself a lawyer....well I can't really afford one as I've been unemployed for over two years, so I'll be defending myself should it go to court.

Cheers

 

[Worldly1]

So you've been threatened with defamation claim, or actually served with a defamation claim?

If the post has been taken down and was only up for a short period of time, I can't really see how much damage you would have caused. So my first thought is, what basis do they have to stand on? Then my second thought is, you've just said you have no money for a lawyer and have been unemployed for over 2 years, so what monetary damages can they expect to get out of you anyway?

You might also find these articles on defamation informative:

• Have You Been Defamed? What You Need to Know About Defamation Law in Australia - Legal Blog - LawAnswers.com.au
• Defences to Defamation in Australia - Legal Blog - LawAnswers.com.au

In relation to their claims about 'profit. guaranteed' (or whatever the wording is that you're not keen to say as it may flag you online to them), it sounds like you're wanting to make an argument that their statement was 'misleading and deceptive' rather than 'mere puffery'? Unless you have been personally impacted, eg, lost money as a result of their statement(s), you don't really have standing to take them to court. Unless you've personally suffered damage, there's nothing for you to do, except theoretically debate the misleading and deceptive vs puffery legal principles (and perhaps contact the ACCC). You can find more information those concepts here:

• Advertising and selling guide | ACCC
• Misleading or deceptive conduct - NSW Fair Trading

Hope that helps/gives another perspective.

 

[Flightrisk]

Thanks Worldy 1. I am a past victim of their marketing and know others that are regretting their choices too, hence the interest. We've all lost thousands, but that's our bad luck in falling for the hype, and I take it on the chin! It peeves me though that they continue on making over a million a year in subscriptions unchallenged and I can see why. It's a good business model, be highly litigant and intimidate fear of cash loss upon every challenger. Thanks for the referrals, I pretty well can recite their context blindfolded. As I said in an earlier post the ACCC aren't interested, as not enough resources, and after the big fish. If it was Woolworths or Coles, different story. I have only been threatened and not issued a proper Concerns Notice yet, just the name of their solicitors and directing all future correspondence via them.
I am steadfast in my belief that I never defamed them, and it would be interesting to hear others interpretations?

As for judgement that goes against me, well I might be unemployed, but they can always take your house I suppose?