Advertising Law in Australia

This assignment delves into the complexities of advertising law in Australia. It examines the key provisions of the Australian Consumer Law (ACL), outlining prohibited advertisements and those requiring strict compliance with specific codes. The document explores regulations concerning alcohol, tobacco, prescription medicines, interactive gambling, and other sensitive areas. Additionally, it highlights the importance of adhering to industry-specific codes and guidelines to ensure ethical and legal advertising practices.

1
Cover page
Name of the student
Student ID
word count
1

2
Contents
Solution 1 (A).............................................................................................................................3
Issue........................................................................................................................................3
Rule.........................................................................................................................................3
Application.............................................................................................................................4
Conclusion..............................................................................................................................5
References..............................................................................................................................6
Answer 1 (B)..............................................................................................................................7
Issue........................................................................................................................................7
Rule.........................................................................................................................................7
Application.............................................................................................................................7
Conclusion..............................................................................................................................8
Reference List.........................................................................................................................9
Solution 2.................................................................................................................................10
Introduction..............................................................................................................................10
Advertisements – Rules and Regulations.................................................................................10
Observation..............................................................................................................................11
Conclusion................................................................................................................................11
Reference List.......................................................................................................................12
Reference List..........................................................................................................................13
2

3
Solution 1 (A)
Issue
Whether the parties, Mary and Lianne, had entered into a contract with one another?
Rule
The prime elements that together results in any contract formation amid two parties are
agreement (offer and acceptance), intention, capacity and consideration.1
An offeror makes an offer to an offeree. An offer is the terms and conditions which are
communicated by an offeror and which he desires to be carried on by the offeree as per the
expectations of the offeror2. An offer when comes in the notion of the offeree is considered to
be complete in law3.
If the offeror in any case, wants to revoke his offer, then, the same is possible, provided, the
offeree has not given his consent. No revocation of offer is possible after the acceptance of an
offer4. One of the methods of revocation of offer is when the offeror gave specific duration
for acceptance but no acceptance is made then the offer is automatically revoked5.
Now, it is thus now important to understand the second element of contract, that is,
acceptance.
An acceptance is the approval which is given by the offeree to the offeror made by an
offeror6. An acceptance is the offeree conformation to offer terms in whatever manner (oral,
written, conduct) but silence is not construed as an acceptance in law7.
If the offeree gave his approval to the proposal of the offeror but includes some of his own
terms then it cancels the acceptance and is counter offer8. A counter offer terminates the offer
and is regarded as new offer in law9.
It is now important to mention that when one party only provides some kind of information to
another party on the request then it is not an offer or acceptance in law and is only regarded
as ‘requests’10
Now, if any person does not intend to make an offer but desires to receive offers then he can
do so by inviting people. Invitation can be made in the form of display of goods,
advertisements11, tenders, auctions, etc. This act of inviting offers is called invitation to
1 Peter Gillies, Concise Contract Law, (Federation Press, 1988).
2 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.
3 Tinn v Hoffman & Co. [1873] 29 LT 271.
4 Goldsbrouagh Mort & Co Ltd v Quinn (1910).
5 Ramsgate Victoria Hotel Co v Montefiore (1866).
6 Powell v Lee (1908).
7 R v Clarke (1927); Felthouse v Bindley (1862).
8 Turner Kempson v Camm [1932].
9 Hyde v Wrench (1840); Masters v Cameron (1954).
10 Harvey v Facey (1893).
11 Carlill v Carbolic Smoke Ball Co (1893).
3

4
treat12. The inviter receives offer and he acts like an offeree and once an approval is given to
the offer, then, a contract is said to exist amid the parties. In Fisher v Bell 13, an advertisement
is held to an invitation to treat. There are several cases wherein advertisements are considered
to be invitations14.
Further, if the offeree intends to cancel his acceptance, then, it is very necessary that the same
must be done before the acceptance reaches in the knowledge of the offeror15. Now, an
acceptance comes in the knowledge of the offeror when it is reaches the offeror16. But, when
the acceptance is made with the help of post then the acceptance is said to be reached within
the knowledge of the offeror there and then, that is, when the letter is posted17.
But, the situation is different when the acceptance is made with the help of emails. When
emails are exchanged then the problem lies as when the communication of acceptance is
deem to complete, that is, when the email is sent, when it reaches the drop box of the offeror
or when the email is read by the offeror. The controversy is settled and it is submitted that the
acceptance when made by email and an email address is provided by offeror then it is
complete when the mail reaches the offeror regardless of the fact whether the same is read by
him or not18.
Now, the above legal rules are applied to the given factual study.
Application
The two parties that are involved in the given case study are Lianne and Mary.
Lianne is a property developer. She wants to throw a party in order to treat her friends and
thus requires a party professional organizer.
She finds an advertisement which is issue by Mary.
Now, since an advertisement is issued by Mary, then, it is first necessary to understand the
nature of an advertisement.
Now, when an advertisement is issued then it is an invitation as rightly held in Fisher v Bell.
The advertiser is at the position of an offeree.19
Thus, Mary is the advertiser and thus she is an offeree in the given situation. So, she must
receive offers from the interested parties.
12 Pharmaceutical Society of Great Britain V Boots Cash Chemists ( Southern) Ltd (1953);
13 Fisher v Bell [1961] 1 QB 394.
14 Grainger v Gough [1896]; Partridge v Crittenden [1968].
15 Byrne v Van Tienhoven & Co (1880) .
16 Entores Ltd v Miles Far East Corporation (1955).
17 Adams v Lindsell (1818)
18 Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015]; Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015]
QSC 119.
19 Fisher V Bell (1961) .
4

5
Now, on 10th June an email is sent by Lianne wherein she intends to seek the services of
Mary with specific requirements and sought the quote from the end of Mary.
Now, only quote is asked by Lianne from Mary, thus, there is no offer made by Lianne as
held in Harvey v Facey (1893).
Now, against the request of Lianne, Mary does not provide any quote but specifies more
specification of the party. Lianne again email Mary and incorporated mire requirements.
Now, for the first time a quote is provided by Mary to Lianne @ $10,000 for the party but
cannot be regarded as an offer. Now, against this quote, Lianne for the first time makes an
offer @ $9500.
So, an offer is now made by Lianne to Mary.
But, against this offer, the acceptance that is provided by Mary is not valid as she
incorporated a variation in the deposit amount and also submitted that this new terms are
valid only for seven days.
So, the offer is deem to be rejected by Mary as a counter offer is made to the offer of Lianne
(since acceptance is made with varied terms) as held in Hyde v Wrench (1840).
But, Lianne does not respond to this email of Mary. She responded on20th June, that is, 10
days after the offer is made by Mary. So as per Ramsgate Victoria Hotel Co v Montefiore,
this offer of Mary stands revoked.
Lianne sends an email of acceptance for $ 9500 considering the offer that is made on 10th
June by Mary. But, the offer is not more valid as it is revoked because of she did not accepted
the offer within given time frame. However, against this mail of Lianne, Mary made a new
offer @ $ 10000. This offer is accepted by Lianne. However, after thirty minutes she sends an
email again wherein Lianne revoked her offer.
Now, both the mails does not reach Mary because of the fault of computer.
Now as per Entores Ltd v Miles Far East Corporation, an acceptance is complete when made
through email provided it reaches the knowledge of Mary. But, before the acceptance email is
read by Mary, Lianne sends a revocation mail. However, thus, if Mary reads the mail of
revocation prior to mail of acceptance then the acceptance stands revoked and there is no
contract amid Lianne and Mary.
By applying the rule laid down in Vantage Systems Pty Ltd v Priolo Corporation Pty
Ltd [2015] is applied and it is submitted that the since the acceptance mail is reached half an
hour before the revocation mail, thus, the acceptance is complete half an before the
revocation mail.
Thus, the later mail of revocation is not valid. So, there is a valid contract.
5

6
Conclusion
It is concluded that there is a valid contract between Mary and Lianne. The acceptance by
Lianne is sent half an hour before the revocation mail so a concluded contract exists between
a Lianne and Mary. So, no mail of revocation will cancel the contract which was already
made amid the parties.
6

7
References
Books/Articles/Journals
Peter Gillies, Concise Contract Law, (Federation Press, 1988).
Case laws
Adams v Lindsell (1818)
Byrne v Van Tienhoven & Co (1880) .
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.
Entores Ltd v Miles Far East Corporation (1955).
Goldsbrouagh Mort & Co Ltd v Quinn (1910).
Felthouse v Bindley (1862).
Fisher v Bell [1961] 1 QB 394.
Grainger v Gough [1896].
Harvey v Facey (1893).
Hyde v Wrench (1840).
Masters v Cameron (1954).
Pharmaceutical Society of Great Britain V Boots Cash Chemists ( Southern) Ltd (1953);
Powell v Lee (1908).
Ramsgate Victoria Hotel Co v Montefiore (1866).
R v Clarke (1927).
Tinn v Hoffman & Co. [1873] 29 LT 271.
Turner Kempson v Camm [1932].
Partridge v Crittenden [1968].
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119.
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015];
.
7

8
Answer 1 (B)
Issue
Advise Lianne of her rights, if any, against Mary under the Australian Consumer Law
(ACL)?
Rule
Section 3 defines a consumer as such person who is the purchaser of the goods/services for
worth less than $ 40,000 or above $ 40,000 if the goods are of personal or domestic use and is
held in Carpet Call Pty Ltd v Chan20. There are various consumer guarantees that are
mentioned in the Act. Some of them are:21
i. That the buyer will receive an undisturbed title (section 52);
ii. That the goods are of acceptable quality (section 54);
iii. The goods must fit for common purpose. If the purpose is disclosed than the
goods must fit for such purpose (section 55)22;
iv. Goods must correspond to description and sample (section 56 - 57)23;
Now, if the guarantees are breached, then, the consumer can sue the supplier and seek
remedies which depend upon the kind of failure that is incurred:
I. If there is major failure of the goods as per section 260, then, the goods can be
rejected and the consumer can seek replacement or refund. Compensation can also
be requested. Major failure is incurred when there is coalition of section 55-57,
54, 52, etc.
II. If the failure is minor then repairs or replacement of the goods must be made
within reasonable time.
As pee section 64, no consumer guarantees can be excluded and is held in Google Inc v
ACCC High Court of Australia24.
Application
A contract is made amid Lianne and Mary for worth $ 9,500. However, the food which is
supplied was Russian whereas Lianne demanded Malaysian food. Also, the boat was
extremely cramped and there was no room for dancing whereas when the contract was
entered at that time Lianne specifically asked for a dance room.
It is submitted that since the contract is for $ 9,500, thus, it is a consumer contract as per
section 3 of ACL. Also, Lianne has made specific description of the boat that is required by
her but the boat actually served by Mary was not as per the requirement of Lianne. Thus,
Mary is in violation of section 55-57 of the ACL. This is a major failure of the part of Mary
as per section 260.
20 Carpet Call Pty Ltd v Chan [1987].
21 Deborah Healey, Australian Trade Practices Law, CCH Australia, 1988.
22 David Jones v Willis (1934).
23 Grant v Australian Knitting Mills (1935); Beale v Taylor (1967).
24 Google Inc v ACCC High Court of Australia [2013].
8

9
Thus, Lianne can seek compensation for the loss that is incurred by her.
Conclusion
Since Mary is involution of section 52, 55-57 of the ACL, thus, Lianne can sue Mary under
ACL and seek compensation of her losses.
9

10
Reference List
Books/Articles/Journals
Deborah Healey, Australian Trade Practices Law, CCH Australia, 1988.
Case Laws
Beale v Taylor (1967).
Carpet Call Pty Ltd v Chan [1987].
David Jones v Willis (1934).
Grant v Australian Knitting Mills (1935).
Google Inc v ACCC High Court of Australia [2013].
10

11
Solution 2
Introduction
People all over the world make half of their judgments on the basis of the advertisements they
see. The advertisements are present in all forms, whether on radio, television, print, etc. Thus,
can be state that there is a grave responsibility on the advertiser to comply with all the
regulations in order to avoid any kind of hardship.
Through this essay an analysis is drawn on the statement Advertisements published by
businesses appear in various media such as television, radio, print, or internet. In Australia,
as elsewhere, advertisements are designed to have a certain impact or effect on those who
see, read or hear them.’
The analysis is drawn with the help of several regulations and codes that are farmed within
Australia.
Advertisements – Rules and Regulations
It is argued that the statement made above is correct and the business advertiser needs to be
careful about statements made in its advertisements given that they are subject to legal rules
developed by the courts as well as by parliament. Some of the legal frameworks are:25
1. Australian Consumer Law – There are few provisions that are enacted within the ACL
that deals with how advertising should be carried on. Some of the provisions are:26
a. No advertisement must be deceptive or misleading in nature as per section 18 of
ACL.
b. Any advertisements that provide information or representation that are false are
not allowed under section 29 of ACL.
c. Any advertisement that brings advantages to the dominant party at the loss of the
weaker is an act of unconsiousable and any advertisement that results in the same
is violation of section 20 of ACL.
ii. There are few products that are strictly prohibited to be advertised. The same are:
a. Tobacco products in order to discourage smoking, however, must comply with
Tobacco Advertising Prohibition Act 1992.
b. Prescription medicines – in order to get these medicines advertised it is necessary
to comply with Australian Register of Therapeutic Goods (ARTG).
c. Interactive Gambling Services must comply with The Interactive Gambling Act
2001.
d. Gaming Services in New South Wales and Victoria
e. Advertisement to promote adoption;
25 Leanne Montibeler & Tony Anisimoff, A Hitchhikers Guide to Advertising Law in Australia, 2014,<
http://anisimoff.com.au/publication/al14/>.
26 Horvath et al et al, Consumer Protection Law Developments, (American Bar Association 2009).
11

12
f. To enter into surrogacy arrangement are banned;
iii. Advertisement related to Alcohol must comply with:
a. Alcohol Beverages Advertising Code (ABAC) and the Australian Association of
National Advertisers’ Code of Ethics (AANA Code) when the same are on radio,
Print and Television.
b. When on packaging then The Australia New Zealand Food Standards Code (Food
Standards Code) must be comply with;
v. In films, DVDS and Games the Classifications (Publications, Films and
Computer) Act 1995 must be followed;
vi. On cosmetics The National Industrial Chemicals Notification and Assessment
Scheme (NICNAS) Guidelines 2007 should be applied;
vii. The Food Standards Code must be applied by the advertisers when the
advertisement related to food is undertaken. Apart from that there are codes such
as AANA Food & Beverages Advertising & Marketing Communications Code
and Australian Quick Service Restaurant Initiative for Responsible Advertising
and Marketing to Children which are self regulated code and which must also be
comply with.
viii. Any advertisements regarding Medical devices must comply with Therapeutic
Goods Act 1989 (Cth), Part 2 of the Therapeutic Goods Regulation 1990, and the
Therapeutic Goods Advertising Code (TGAC) as they can be sold directly to
consumers.
ix. Any advertisements related to contents of motor vehicle must be guided by The
Voluntary Code of Practice for Motor Vehicle Advertising instituted by the
Federal Chamber of Automotive Industries (the FCAI Code).
x. If any political advertisement is undertaken then it must comply with the
Broadcasting Services Act 1992 (Cth).
Observation
It is thus observed that Advertisement which is of bait nature is not allowed or unreadable
advertisements, with false information are coalition of section 18. Also, any claims regarding
the novelty of the goods or origin or quality etc are violation of section 29 of ACL. It is
observed that apart from these Australian Consumer law regulations, there are numerous
codes and regulations that are framed within Australia which is binding upon any
advertisement of any zone. The need to comply with these regulations is necessary mainly
because to restrict the actions of the advertiser and to curb any kind of menace if any caused
through such advertisement.
Conclusion
It is thus concluded that these are some of the regulations, enactments and codes that must be
comply with by every advertiser who are indulging in the supply of goods or services to the
consumers. The Compliance of laws are very necessary in order to avoid any kind of hardship
in law. Further, the laws are not limited neither the list is exhaustive. Rather, with the passage
of time and with the coming of new technology, the laws that is required to limit the actions
12

13
of the advertisers are framing with each passing day so that the interest of the public can be
justified.
Reference List
Leanne Montibeler & Tony Anisimoff, A Hitchhikers Guide to Advertising Law in Australia,
2014,< http://anisimoff.com.au/publication/al14/>.
Horvath et al et al, Consumer Protection Law Developments, (American Bar Association
2009).
13