Business Blogging

Do you have a blog or intend to create a blog for your business? A recent decision of the Federal Court of Australia may be relevant to you. The case of Nextra Australia Pty Ltd v Fletcher (2014) dealt with an injunction sought by Nextra Australia (a newsagency franchisor) against Mark Fletcher (a director of NewsXpress - a competing newsagency franchisor).

Background

On 27 April 2011, Mr Fletcher published an article on his blog that attacked a flyer that had been put out by Nextra for newsagents. In the article he alleged that Nextra had misled newsagents and that the flyer was designed to create fear to generate interest in Nextra as an alternative francisor to others in the market.

Nextra demanded that Mr Fletcher remove the article. He refused.

Nextra commenced legal proceedings against Mr Fletcher, attempting to have the article removed, restraining Mr Fletcher was publishing the article elsewhere and forcing him to publish a retraction on his blog.

In the proceedings, Nextra alleged that Mr Fletcher had engaged in misleading and deceptive conduct by writing and posting the article on his blog. It claimed that the article by Mr Fletcher contained false allegations and innuendo regarding the flyer published by Nextra.

Mr Fletcher defended the case on the basis that it could not be misleading or deceptive conduct as the article was not published "in trade and commerce" (as required by the Australian Consumer Law). He also alleged that what he had written in the article was fair and accurate given the contents of the flyer.

The Law

The Australian Consumer Law prohibits a person or company from engaging in misleading and deceptive conduct in trade and commerce as well as any conduct that is likely to mislead or deceive.

Court's Decision

The Court first had to decide whether the article was made "in trade and commerce", as without this ingredient there can be no claim by Nextra.

How to define the phrase "in trade and commerce" was vitally important to the decision. What does a person do that's within the realm of trade and commerce? Is every minor thing that a person does while employed in trade and commerce? Or is it only actions that are by nature of a trading or commercial nature?

Mr Fletcher claimed that his blog was published for personal reasons and not for commercial benefit.

The Court found that Mr Fletcher used his blog for mixed reasons, sometimes personal, but at other times to promote his commercial interests (the blog had over 12,000 posts). It decided that the article that was the subject of the dispute was published in trade and commerce be