Full Federal Court finds Employsure Google ads misleading

The Full Federal Court has found Employsure Google Ads misleading.

Last month, the ACCC found Lorna Jane to have misleading advertisements.

The announcement:

The Full Federal Court has today unanimously upheld an appeal by the ACCC in relation to Google Ads published by workplace relations advisor Employsure Pty Ltd.

The Full Court found that Employsure had breached the Australian Consumer Law by making misleading representations that it was, or was affiliated with, a government agency, overturning the judgment of Justice Griffiths that dismissed this claim at first instance.

The Google Ads, published between August 2016 and August 2018, featured headlines such as ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’ and appeared in response to search terms such as ‘fair work ombudsman’.

The Full Court found that Employsure’s Google Ads were misleading in large part because of the use of the government agency names in the largest and most prominent typeface, and because the ads omitted any reference whatsoever to Employsure.

“Employsure’s ads were displayed to small businesses who were searching for workplace relations advice from the relevant government agency, the Fair Work Ombudsman. Employsure is a private company which is not affiliated with the government, and provides workplace relations advice to businesses under long-term contracts with on-going fees,” ACCC Deputy Chair Mick Keogh said.

“We took this action after receiving over 100 complaints relating to Employsure, including from small businesses who had contacted Employsure after viewing a Google Ad and thought they were dealing with a government agency.”

“We brought this case because we were concerned that Employsure’s ads gave the impression that Employsure was a government agency or affiliated with government. Any attempt to misrepresent a business as being part of the government is a serious breach of trust – and of our consumer laws,” Mr Keogh said.

“This finding by the Full Federal Court sends a very strong message to internet advertisers that misleading consumers and small businesses by using combinations of words that are the same or similar to the names of government agencies to attract customers risks enforcement action and significant penalties.”

“We will continue to take appropriate enforcement action where we consider that businesses are misleading consumers with search engine advertising,” Mr Keogh said.

A hearing on relief, including penalties, will be held at a later date.

Source: ACCC media release

An Employsure spokesperson said:

“We are reviewing today’s decision, noting there are additional steps to be taken by the Court before this is resolved. It’s worth noting that the majority of the ACCC’s case was dismissed in the Federal Court, a finding that was not contested. And as Justice Rares noted today, the matter of these six Google Ads was a discrete issue. The ads in question are historical in nature and have not featured in our paid search strategy for several years.

We have always strived to act in the best interest of small businesses, offering cost-effective workplace relations advice that helps them meet their obligations. It has never been our intention to misrepresent who we are, only to support small business owners as they navigate Australia’s complex workplace relations system. We stand by that position.

Regardless of today’s outcome our focus remains to keep doing what we do best: helping small businesses build safe and fair workplaces so they can protect their employees and grow their business.

This article was updated with a response from Employsure.


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