Section 18 of the Competition and Consumer Act 2010 (Cth), commonly referred to as s 18 of the Australian Consumer Law (ACL), is one of the most far-reaching provisions in Australian commercial law. It applies to almost every business, in almost every industry, and it can be triggered by things most owners never think of as "legal" at all: a headline on a landing page, a price displayed at checkout, a comment made by a staff member on the phone, or a product photo that makes something look bigger than it is.
This article explains what s 18 actually says, how courts and regulators interpret it, where businesses most commonly run into trouble, and what practical steps can reduce your exposure without neutering your marketing.
The key topics covered below are:
- What the provision says and what each element means
- How "misleading or deceptive" is assessed in practice
- Where businesses get it wrong
- What happens when conduct breaches s 18
- How Artificer Legal can help you manage your risk
What section 18 of the ACL actually says
Schedule 2 to the Competition and Consumer Act 2010 (Cth) contains the Australian Consumer Law. Section 18 of that schedule 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.
Three words carry most of the weight.
"In trade or commerce" confines the provision to your business activities. It covers advertising, quoting, selling, negotiating, onboarding, and after-sales communication. It does not generally apply to purely private transactions between individuals.
"Conduct" is deliberately broad. It is not limited to statements. It can include images, demonstrations, pricing displays, comparisons, omissions, and the overall impression created by a combination of elements. A technically accurate headline paired with a misleading visual can be "conduct" just as much as an outright false claim.
"Likely to mislead or deceive" is the provision's sharpest edge. You do not need to have misled anyone yet. If your conduct is capable of misleading a reasonable member of your target audience, that may be enough. It follows that you can be acting in good faith and still contravene s 18.
How courts assess "misleading or deceptive"
The test is not whether your words, taken in isolation, are technically accurate. Courts ask what overall impression is conveyed to the relevant audience.
That matters for a few reasons. Fine print does not automatically cure a misleading headline. A qualification buried in a terms page, or in tiny text at the bottom of an advertisement, may not correct the dominant impression that the rest of your messaging creates. The question is whether the qualification is clear, prominent, and close enough to the main claim to actually do its job.
The "relevant audience" is usually a reasonable member of the class of people to whom the conduct is directed. If you are marketing to sophisticated commercial buyers, the standard applied may differ from a campaign targeting general consumers. But the point of the test is that you are assessed through the eyes of your actual audience, not through a charitable reading you construct after the fact.
Intention is irrelevant. The High Court has confirmed that s 18 imposes no requirement to prove that a business intended to mislead. Honest mistakes, careless copy, and well-meaning representations that create a false impression all sit within the provision's reach.
Silence can mislead. The provision is not limited to positive statements. In circumstances where a reasonable customer would assume something is true, failing to correct that assumption can itself constitute misleading conduct. This is especially relevant where you know the customer holds a mistaken belief and you allow the transaction to proceed without correcting it.
Where businesses commonly get it wrong
Advertising and social media claims
Claims like "best in market", "guaranteed results", "number one", or "instant approval" create risk when you cannot substantiate them, or when they create expectations that your product or service does not reliably meet. The problem is often not the claim itself but the absence of any qualification, or a qualification that is not visible to the average viewer.
Pricing is the most reliable source of complaints. Common problems include advertising a "from" price that almost no customer can actually access, failing to disclose unavoidable fees until checkout, showing a discount against an inflated "was" price, or presenting a per-person price in a way that obscures the true booking total. If a customer would ordinarily expect a price to include something, leaving it out creates risk.
Product descriptions and photos
For product-based and eCommerce businesses, images carry legal weight. A photo that makes an item look substantially larger than its actual dimensions, filters that materially alter colour or finish, or descriptions that misstate materials or compatibility can all create s 18 issues. The question is whether a reasonable customer looking at the listing would come away with an accurate picture of what they are buying.
Sales conversations and quotes
Section 18 is not confined to your website or advertising. It applies to what your staff say on the phone, in DMs, in emails, and across the counter. A common pattern involves a customer asking whether a service includes a particular deliverable, a team member saying yes (casually, without checking), and a contract or scope that says otherwise. That gap between the conversation and the document is exactly where s 18 disputes begin.
Warranty and refund statements
Telling customers they have no refund entitlement, or that you only offer store credit, creates s 18 risk if it gives customers the impression they have fewer rights than they actually do under the ACL. Similarly, if you offer a voluntary warranty, the way you describe it must not create a misleading impression about the scope of customer rights.
A practical check for your business
Before you publish a campaign, update your pricing, or launch a new product, it is worth running through a short set of questions.
- Can you substantiate every objective claim you are making? If a customer asked for your evidence, could you produce it? If the claim is only true in certain circumstances, is that limitation built into the claim itself rather than left to fine print?
- Are your qualifications visible and close to the claim they qualify? A disclaimer that requires a customer to scroll, click, or squint is unlikely to correct the overall impression your headline creates.
- Does your checkout price match your advertised price? Are all unavoidable fees disclosed before the customer commits?
- Do your customer-facing terms, return policy, and warranty documents reflect what your team is actually telling customers? Run through the full customer journey and look for places where the story changes.
- If a staff member received a scope question from a customer, do they know to check rather than confirm off the top of their head? Are verbal commitments being followed up in writing?
This kind of review does not need to be elaborate. For most businesses, a structured look at the customer journey once a year, and a quick check before any significant campaign, is enough to catch the gaps before they become disputes.
What happens when conduct breaches section 18
Section 18 itself is not a civil penalty provision. Contravening it does not automatically expose a business to the financial penalties that apply under other parts of the ACL (such as s 29, which covers specific categories of false or misleading representations and does carry substantial penalties for corporations and individuals). The ACCC regularly pursues both provisions in the same proceedings when conduct engages both.
For a breach of s 18, the primary remedies are:
- Injunctions. A court order requiring the business to stop the conduct, correct it, or take specified steps.
- Declarations. A court declaration that the conduct contravened the law.
- Compensation. Under ss 236 and 237 of the ACL, a person who suffers loss or damage because of misleading conduct can apply for compensation. That includes customers, competitors, and in some cases other businesses affected by the conduct.
In practice, ACCC investigations and competitor complaints can impose costs far beyond any formal order: legal fees, media coverage, corrective advertising, and the time cost of a protracted dispute. Reputational exposure tends to hit hardest when the conduct is publicly documented through an ACCC media release or Federal Court judgment.
Private litigation is also a real risk, particularly from competitors who can point to lost sales or customers who can demonstrate they entered a transaction on the basis of a misleading representation.
How Artificer Legal can help you manage your risk
For most small and medium businesses, the practical risk under s 18 is not a regulator investigation. It is a dissatisfied customer, a competitor complaint, or a dispute that escalates because your marketing, your checkout, and your contract are not telling the same story.
A solicitor reviewing your exposure will typically work through the following:
- Customer journey audit. Mapping every touchpoint where a representation is made: ads, landing pages, product listings, checkout, invoices, emails, contracts, warranty documents, and what staff are trained to say. The goal is to identify where your messaging creates impressions your documentation cannot support.
- Claim substantiation review. Checking whether your material claims are backed by evidence you can produce, and whether qualifications are sufficiently prominent to actually correct the impression your headline creates.
- Document alignment. Ensuring your customer-facing terms, policies, and contracts reflect what your marketing is promising, and do not create gaps that a customer or regulator could characterise as misleading by omission.
- Staff guidance. Advising on what "safe language" looks like in sales conversations, particularly around scope, inclusions, timelines, and guarantees, so that verbal representations do not create unintended legal exposure.
If you are preparing for a product launch, scaling paid advertising, or have received a complaint that is escalating, getting specific advice before the conduct is documented in a complaint is considerably cheaper than managing it afterwards.
What a reasonable audience walks away believing
The question s 18 asks is not "did we lie?" It is "what would a reasonable member of our audience walk away believing, and is that accurate?" That framing should sit at the front of every marketing decision you make.
Taken seriously, it is not a constraint on effective advertising. It is an argument for making your claims clearer, your qualifications more prominent, and your customer-facing documents consistent with what your team is actually promising. That discipline tends to reduce disputes across the board, not just the ones that end up in a court or a regulator's inbox.
If you want to work through how s 18 applies to your specific advertising, pricing, or sales process, contact Artificer Legal for a consultation.