Full Federal Court finds Employsure Google Ads misleading

17 August 2021

On 13 August 2021, the Full Federal Court unanimously upheld an appeal by the ACCC in relation to Google Ads published by a private workplace relations advisor, Employsure Pty Ltd.

On appeal, Employsure was held to have breached ss 18 and 29 of the Australian Consumer Law by making misleading representations that it was, or was affiliated with, a government agency.

The Google Ads the subject of the appeal featured headlines including phrases such as “Fair Work Ombudsman Help” and ‘”Fair Work Commission Advice” and appeared in response to Google search terms such as “fair work ombudsman”.

The Full Court’s judgment considers the principles relevant to assessing the likely effect of an impugned representation on the ordinary or reasonable members of the relevant class to whom the representation is conveyed. The judgment also addresses the manner in which consumers assess online advertising and, in particular, Google Ads.

Danielle Forrester of Banco Chambers appeared for the ACCC led by Nic Owens SC and instructed by Corrs Chambers Westgarth. Peter Brereton SC of Banco Chambers appeared for Employsure, leading Conor Bannan and instructed by Webb Henderson.