I once hosted a bidders conference with $16 million on the table. There were 40 reps in the audience from every capable vendor in the industry with an Australian office. I introduced the requirements to bid and how bids would be assessed prior to walking through ther requirements and Q&A.
The part of this story germane to this topic was
‘There are 40 of you in the room today representing 12 vendors. I appreciate that the number here reflects the seriousness and intent to respond to our requirement. If we receive 12 proposals I expect each will start with something like ‘we are the leading supplier of…’. If that happens at least 11 and possibly all 12 such proposals would be making suspicious claims unless you are more specific about what you are leading; it could be your products, your business success, profitability, or a parade. I am sure you understand we will evaluate your proposal vis a vis our requirements not other’s requirements, and I thank you for focusing your proposals on the technical and business issues that will be evaluated’.
Not a single proposal had anything about being a leader beyond listing the required references of similar projects they completed. The winner had an excellent run at delivery, installation, and ongoing management/maintenance services, including some advanced development.
But back to the topic. The vendors understood I did not appreciate puffery so they did not add any. In reality, if they had included any it would have resulted in some rolling of the eyes but we all would have moved on to issues of substance. Maybe that makes a point? Or not?
I was talking about how the term “Most Awarded Real Estate Agency” was used in a meta title tag and the result that becomes published on Google.
One can assume nothing other than the plain meaning of this statement. It is a comparison by HC to all the other real estate agencies in the Caloundra region. If there are no actual real estate awards that HC has, then they must be fabricated, simple as that.
However I am positive, if given the opportunity, that an SC or QC would have a go at delivering a concocted outcome.
The second reference in this post that has been attributed to myself is incorrect. I didn’t make it, grahroll did.
If the so called awards came out of a corn flakes packet, the misrepresentation is much worse and could be seen as deceit, as there would be a clear intention to deceive, however as said above somewhere, intention is not required to be proved in an ACL matter.
It seemed there was an important topic and discussion. It’s no longer self evident what the objectives are, and I’m only half way through my first beer for the evening. Perhaps after a stiff nip of something more potent it might become clearer, or maybe not?
Is this about how to best obtain recourse over the conduct of one of Harcourts franchised Caloundra Agencies partners?
Is this about the reliability of online customer reviews and whether they can be deleted unreasonably without recourse?
Is this about how best to walk away from a business that provides substandard customer experiences?
Is this about …?
Some straight speaking, yes or no responses might help understanding.
Many businesses market products using similar methods. Take cosmetics, they market with things like ‘95% of users found a positive benefit’ … when the 'survey used company paid panel members who ‘rated’ the product for the company. These may have the same value as one in a cornflakes packet.
In relation to awards, every year there are multiple ‘Australian car of the year’ awards run by different media outlets and organisations. Unsurprisingly each award often has different winning vehicles in each category…but how can they be called Australian car of the year…oh, the small print where it is clarified as 'XYZ’s Australian car of the year award. Details clarify what it means.
There are also companies which use terms like eco, natural, organic etc when their products are different to what their business names may indicate. This is perfectly legal, but if they label a product as organic when it is not, then they are in hot water.
Being ambigious is one of the basic marketing tools used by almost every company (most advertisements contain some level of ambiguity)…and it is unlikely that the ACCC will take action against one as it would affect all and the industry. The ACCC will however take action when claims are deliberately misleading or false.
In relation to cosmetics, many companies use the approach outlined above as there is no scientific evidence their products work. If they made claims such as ‘scientifically proven benefits’ this would get them in hot water with the ACCC…which there are examples of on the ACCC website.
While one may have issue with the way products or services are marketed, it is legal unless there is a intention to deliberately deceive the customer using false information. Keeping terms generic and ambigious ensures that companies and those which do their marketing, don’t fall foul of the ACCC.
Individuals also react differently to the same marketing materials and why marketing can be a powerful tool to sell products and services. If marketers step ofer the line, then the ACCC will take action. Just because one has a particular view of what the marketing material means (and may be different to others), is not usually grounds for the ACCC to take action…as the particular view may not be that formed by a reasonable (or ordinary) person.
It actually was originally me. The way Discource forum software quotes isn’t always perfect.
Poosibly poor choice of words, but intention is one form, accidential is another. Misrepresentation is the key. The intentional or deliberate ones are the ones most heard about in the public domain.
The other thought is what is the alternative to the historical and status quo. Possibly messaging in advertising and marketing material which would be nauseating to the audience. It would be presented in a way that removes any potential for ambiguity, confusion or doubt.
Using the Harcourts example, it would be something like " Harcourts Caloundra, the most awarded real estate agent by abc, def, etc as independently verified by XYZ’. Awards received and used to form this conclusion as follow…and in comparison to other real estates are …'. Marketing would become more like a disclaimer or detailed conditons rather than traditional marketing material.
While the existing system is not perfect, it could be worse if it was at either end of the spectrum.
Seeing as another person has just used the phrase “move on”, I feel the need to clarify what I meant by it.
In no way did I mean or intend to suggest that you should be “outta here”. My meaning, as with the most recent post by another person, is to suggest that you move your focus to a different issue. You can only flog a dead horse for so long.
You said “Most Awarded” is not puffery.
I said “Most Awarded” is puffery.
All good. We are both expressing our opinions. Our opinions differ. No drama.
I offered some reasons why I hold the opinion that “Most Awarded” is puffery.
However, as in the original discussion of “puffery”, the only opinion that makes a difference is the opinion of the court.
If the Federal Court says that “The Best” and “#1” are puffery and not a breach of ACL then there is limited point in having a contrary opinion. Your only worthwhile option would be to persuade your local MP and by extension a majority of the parliament to change the law to prevent all puffery or at least to prevent certain specific examples of puffery.
It may in fact be that “Most Awarded” has never been tested in court. I have no objection to the Federal Court ruling on that. In some respects it would be interesting from a “consumer” point of view to know - but there is no way I am going to fund such a case. Maybe the ACCC wants to pick that one up.
I wonder why anyone would believe self-agrandising advertising no matter who says it or what document it is written on. No organisation is ever going to say "don’t do business with us, go to the the next one in the street."No one ever makes a song and dance of NOT winning awards, they just don’t mention it. And so on.
This being the case, I don’t really understand why in this case, such self-written testimonial as is paraded by this real eastate company, is held to such high values. Clearly they are not upholding what they wrote, maybe not adhereing to their own values statement, even not reflecting their mission statement. But so what? They haven’t broken the law by doing so. Maybe tarnished their reputation among any who have seen the story but that is likely to be few.
In reality the only person continuing to be hurt by this is gordonC. I would suggest care needs to be taken if he persues this further because he could be accused of harrassment or even subjected to a court order to stop.
Those claims whose meanings were open to different interpretations were likely to be considered vague, indefinite and mere puffery by [ordinary and reasonable members of] the target audience. Such claims did not require evidence to substantiate them (indeed, given the range of possible meanings, it was not clear what evidence would be required).
That case is particularly useful because 4 different examples of boastful advertising were considered. Two of them were ruled “puffery”, one of them was ruled not puffery (has a definitive meaning) but substantiated by evidence (hence OK) and one of them was ruled not puffery and not substantiated by evidence (hence a breach of ACL).
One reason why noone should believe that any business is the “Most Awarded” is that no business can possibly know all the Awards that every other business has ever received. The business making the claim can’t possibly test its claim and nor can a court. (I’ve seen businesses with certificates up on the wall for donating to the local kindergarten. That’s very commendable, no doubt, but opens up the scope of achievements so wide that testing is impossible.)
Even if “award” is limited to a positive sense, it does not rule out 2nd and 3rd place etc.
The winner had an excellent run at delivery, installation, and ongoing management/maintenance services, including some advanced development.
