An advertisement was published with a paparazzi photograph showing a famous film star drinking a well-known soft drink (ie. a photograph was taken of the film star going about their usual activities, which actually involved them drinking that soft drink, and that photograph was taken without the celebrity's consent). Which of the following statements is CORRECT? Select one: a. Publication of the advertisement will not contravene the ACL if it is published only on Facebook. b. Publication of this advertisement will not contravene the ACL if the film star was actually drinking this beverage. c. Publication of the advertisement will not contravene the ACL if it can be shown that the film star drinks the beverage more than any other brand. d. Publication of this advertisement could amount to misleading or deceptive conduct (in breach of the ACL s 18(1)) even if the film star was drinking the beverage, if the film star has not actually endorsed the product. The advertisement's publication may also be a false representation in breach of the ACL s 29(1)(g), and possibly also s 29(1)(f).
Question
An advertisement was published with a paparazzi photograph showing a famous film star drinking a well-known soft drink (ie. a photograph was taken of the film star going about their usual activities, which actually involved them drinking that soft drink, and that photograph was taken without the celebrity's consent). Which of the following statements is CORRECT?
Select one:
a. Publication of the advertisement will not contravene the ACL if it is published only on Facebook.
b. Publication of this advertisement will not contravene the ACL if the film star was actually drinking this beverage.
c. Publication of the advertisement will not contravene the ACL if it can be shown that the film star drinks the beverage more than any other brand.
d. Publication of this advertisement could amount to misleading or deceptive conduct (in breach of the ACL s 18(1)) even if the film star was drinking the beverage, if the film star has not actually endorsed the product. The advertisement's publication may also be a false representation in breach of the ACL s 29(1)(g), and possibly also s 29(1)(f).
Solution
The correct answer is:
d. Publication of this advertisement could amount to misleading or deceptive conduct (in breach of the ACL s 18(1)) even if the film star was drinking the beverage, if the film star has not actually endorsed the product. The advertisement's publication may also be a false representation in breach of the ACL s 29(1)(g), and possibly also s 29(1)(f).
Here's why:
Under the Australian Consumer Law (ACL), businesses are prohibited from engaging in conduct that is misleading or deceptive, or is likely to mislead or deceive (s 18(1)). They are also prohibited from making false or misleading representations about goods or services (s 29(1)(g) and s 29(1)(f)).
In this case, even if the film star was actually drinking the beverage, using their image in an advertisement without their consent could be misleading or deceptive. This is because consumers might interpret the image as an endorsement of the product by the film star, which is not the case. Therefore, the advertisement could be a false representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have (s 29(1)(g)), or that a person has a sponsorship, approval or affiliation they do not have (s 29(1)(f)).
The other options are incorrect. The ACL applies to all forms of advertising, including on Facebook (option a), and whether the film star was actually drinking the beverage or drinks it more than any other brand is irrelevant if the advertisement is misleading or deceptive (options b and c).
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