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).
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 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.
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 because it was one designed to promote NewsXpress and his business interests. The Court decided that Mr Fletcher had posted the blog to defend NewsXpress against poaching of newsagents by Nextra.
The Court had to then decide who was likely to be mislead or deceived by the article. It found that the article was aimed the newsagency community generally.
The next task for the Court was determining what imputations were conveyed in the article.
After doing this the Court had to decide whether those imputations were misleading and deceptive or likely to mislead or deceive.
The test was how a "reasonable" person to whom the article was aimed at (in this case a person in the newsagency community) would react to the article.
What a person intended by the article is irrelevant to how it decides whether it is misleading or deceptive. Evidence that something did actually mislead or deceive is not on its own sufficient to prove that a reasonable person would find it misleading and deceptive.
The Court found that some of the imputations in the Mr Flectcher's article had no basis in fact or were not supported by any evidence. It also found that it was important that Mr Fletcher did not include the flyer with his article and that it was not available anywhere else on the internet, as it had been posted to newsagents.
Ultimately the Court was satisfied that the article was misleading and deceptive and ordered that he remove it and be restrained from making any further publications of it elsewhere. The Court did not however, order that Mr Fletcher had to post a retraction statement on his blog.
What we can take from it
The decision in Nextra emphasises that any business owner publishing their own blog to try to promote their business interests, must be careful about what they post.
Unless something is merely advertising puff, any assertion or statement must be able to be backed by evidence or have some basis.
By not exercising diligence and care, you may find yourself in Court - a costly and time consuming process.
If you receive a demand to remove an article or post, you should seek legal advice or be prepared to remove the item immediately.
For more information contact:
Richard Morris - (02) 6772 4899
The information contained in this blog is a general summary only and is not intended to be legal advice. You should seek specific advice in relation to your particular circumstances.