ACCC appeals Federal Court decision on Emoploysure Google Ads

The Australian Competition and Consumer Commission has appealed a decision made by the Federal Court to dismiss a case against Employsure over misleading Google Ads.

The consumer and competition watchdog initially began proceedings against the employment relations saleshouse to court in 2018 over allegations the company ran misleading Google Ads campaigns between January 2016 and November 2018.

The ads, argues the ACCC, misprepresented that Employsure was, or is, affiliated with a government agency. Employsure is a commercial business that offers employment relations advice to businesses, and earns fees from customers signed up to contracts for advice.

The Google Ads campaign, which ran in response to search terms from small businesses including ‘fair work ombudsman’ featured headlines such as ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’.

The decision from the Federal Court on October 1, 2020, was that the ads were not in fact misleading. A judge concluded that it would be clear to a ‘resonable business owner’ that the copy was part of an ad, due to the marking of ‘Ad’ on it. The ruling also said that as the website the ads linked to was a .com address, not a .gov URL, consumers would not make the government connection.

The Court also found that the words ‘fair work’ had a broad descriptive meaning and were not limited to government agencies.

But the ACCC disagrees with the decision, with commissioner Sarah Court saying some ‘less sophisticated’ business owners would be unable to connect the dots.

“We have appealed this decision because we believe the judge made an error in finding that reasonable business consumers, including smaller and less sophisticated business owners, would not have been misled by the Google Ads,” Court said.

“Employsure’s ads appeared when business consumers searched for ‘fair work ombudsman’ and ‘fair work australia helpline’. The ACCC considers that many businesses were likely to have conducted their searches when they were seeking urgent workplace advice from a government agency and, we will argue, many reasonable business consumers, including small businesses and less sophisticated business owners, were unlikely to have noted the small differences within the ads which were relied on by the judge to make his findings.”

In its initial case, the ACCC sought declarations, pecuniary penalties, injunctions, consumer redress orders for four small businesses, corrective publication and compliance orders, and costs from Employsure for the ads.


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