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.
Employsure is a private company that offers employment relations and workplace health and safety advisory services to business owners. It has no affiliation with any government agency.
The ACCC instituted proceedings against Employsure in December 2018, alleging that Employsure misled consumers that it was, or was affiliated with, a government agency, through its Google Ads published on Google search results pages.
On 1 October 2020, the Federal Court dismissed the ACCC’s case, finding that Employsure had not breached the Australian Consumer Law, including because its Google Ads were not misleading. Late that month, the ACCC appealed the Federal Court decision.