Misleading or deceptive conduct

Misleading or deceptive conduct (often referred to as just misleading conduct) is a doctrine of Australian law.

Section 18 of the Australian Consumer Law, which is found in schedule 2 of the Competition and Consumer Act 2010, prohibits conduct by corporations in trade or commerce which is misleading or deceptive or is likely to mislead or deceive. The states and territories of Australia each have Fair Trading Legislation either containing similar provisions in relation to misleading or deceptive conduct by individuals, or simply applies the federal law to the state or territory. Section 12DA of the Australian Securities and Investment Commission Act 2001 prohibits misleading or deceptive conduct in financial services.

The doctrine aims primarily to provide consumer protection by preventing businesses from misleading their customers. However, it extends to all situations in the course of trade or commerce. A range of remedies are available in the event of misleading or deceptive conduct.

The prohibition on misleading conduct is set out in section 18(1) of the Australian Consumer Law:

The Australian Consumer Law defines conduct as:

Section 18 of the Australian Consumer Law essentially mirrors the previous ban on misleading or deceptive conduct in section 52 of the Trade Practices Act.

The elements required in order to establish misleading or deceptive conduct are:

"Trade or commerce" is given its ordinary construction, and applies not only to transactions between corporations and consumers, but to anyone providing or acquiring goods or services. However, purely private or domestic transactions will not be captured within the ambit of section 18.

Unlike related doctrines in contract or tort law, such as the tort of deceit and misrepresentation, misleading or deceptive conduct applies to any conduct that is, or is likely to be, misleading or deceptive, and does not require the making of a representation.

Conduct is likely to mislead or deceive where there is a "real and not remote" chance that it will mislead or deceive, which can be true even where the probability of misleading or deceiving is less than 50%. When the allegedly misleading or deceptive conduct is directed towards the public at large, the relevant reaction is that of the ordinary or reasonable members of the class of prospective purchasers. If the conduct is directed at specific individuals, the conduct as a whole is relevant, considering the nature of the parties and transaction.

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