Posted on 17 Mar. 2016
When social media marketing amounts to misleading and deceptive conduct
By Slater and Gordon
Social media posts may no longer be as ephemeral as first thought following the recent Federal Court judgment of Comité Interprofessionnel du Vin de Champagne v Powell  FCA 1110, which held that one’s social media activity was capable of amounting to misleading and deceptive conduct under the Australian Consumer Law.
The self-proclaimed ‘global ambassador for champagne’, ‘Champagne Jayne’, found herself in a fizz with the Comité Interprofessionnel du Vin de Champagne (CIVC) following her affiliation and promotion of Tasmanian Sparkling wine on her social media pages.
Since 2009 Rachel Jayne Powell has promoted herself as ‘Champagne Jayne’, an educator and expert in champagne. Ms Powell has relied heavily on her social media presence in the promotion of her image and promotion of champagne.
In 2013 a number of social media posts were documented in which she made references to champagne when the products displayed were not champagne but sparkling wine.
The CIVC contended that Ms Powell used the goodwill associated with the name ‘champagne’ in the promotion of her own image. In turn they alleged that her promotion of sparkling wine under the media guise ‘Champagne Jayne’ acted to mislead and deceive potential purchasers of champagne and had subsequently tarnished the name of champagne.
Ms Powell argued that such media posts were not deceptive nor necessarily viewed or read by followers because of the fleeting nature of social media, however such a contention was not accepted.
The judgment held that Ms Powell’s conduct on her social media pages promoting sparkling wines was likely to mislead and deceive the public including people who did not know the difference between champagne and sparkling wines and thus was in contravention of s 18 of the Australian Consumer Law.
This judgment suggests that the creation of a social media image and transient nature of one’s social media activity may be more pervasive and permanent than anticipated as tweets, posts and images may have the capacity to mislead and deceive.
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