16 March 2017

Director of Consumer Affairs Victoria v Gibson [2017] FCA 240

Yesterday the Federal Court handed down a decision finding Annabelle Natalie Gibson guilty of three representations that amounted to misleading and deceptive conduct in trade and commerce, under the Australian Consumer Law.

The case against Ms Gibson has been well documented in the media. The conduct in question related to statements by Ms Gibson’s about her diagnosis with terminal brain cancer, and her subsequent cure, by following certain natural recipes and therapies. These statements were made via Facebook, Instagram, in media interviews, and within Ms Gibson’s app and recipe book titled ‘The Whole Pantry’ from which Ms Gibson made substantial profits.

Australian Consumer Law provides that “a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Significantly, there need not be any fraudulent intention or guilty mind for a person to have engaged in misleading conduct. By contrast, deceptive conduct requires the person making the representation to know that it is false.

Whilst, in this case, the person engaging in the prohibited conduct made a lot of money, the terms ‘in trade or commerce’ have generally been interpreted widely by the courts and may encompass any commercial activity, even on a small scale.

Section 18 is a ‘strict liability’ provision. This means that it does not matter that a person is not aware that their misleading statement was false.

The court is yet to decide the penalty that will be applied to Ms Gibson.

This decision is a reminder that care should be taken, in any commercial dealings, not to make any statements that are misleading, deceptive or capable of leading another into error.

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