Dealing with competitors who publish false and misleading information about your business

When a competitor publishes false or misleading information about your business, designed to reduce your custom, you could end up feeling shocked, angry or perhaps just uncertain about how to respond next. Whilst your first reaction could be to immediately call the other person, or write them a firm letter, to give voice to your spleen a more planned response is called for as it could mean the di erence between getting the “o ender” to back down or having to deal with them by having them [mis]quote you some other way. Simply put, a well worded letter of demand coupled with the threat of having to face an injunction could be the answer to dealing with problematic competitors who like to publish inaccuracies and falsehoods. From time to time we have seen business owners write and publish things about other businesses that are misleading and false and in some cases designed to get customers to either switch or avoid further dealings. Whilst such publications can range on the spectrum from the extravagant “X” Pty Ltd are a bunch of crooks to something far more subtle such as the director of “Y” Pty Ltd was successfully sued by a customer (suggesting a wrong) most cases fall in between. Tragically, for many small businesses, the problematic publication may only be brought to their attention after some time when it has been republished in some cases by the news media and when it is hard to assess the impact it has had. If, however, you can ascertain how the publication has impacted on your business, then that could mean that you will not only seek an injunction but potentially also damages. For most cases involving an offensive publication most readers are tempted to respond with that is defamatory (or libel). However, given that the law of defamation in New South Wales especially is incredibly technical in terms of having to rely on getting the “imputations” (a.k.a. gist / sting) correct other simpler avenues such as the Australian Consumer Law could o er a better alternative. The prohibition in section 18 to Schedule 2 of the Competition and Consumer Act 2010, that a person must not in trade or commerce engage in conduct that is misleading or deceptive, o ers a neat way to deal with these types of complaints provided all the requirements of that section are triggered. As with most laws there can be exceptions and if the problematic information was republished by an information provider (such as the news) during the course of providing information then it is likely the section will not assist. Often though media providers have their own policy and conduct guidelines that can be used to remove the offensive material should all else fail. Should you face the type of situation described above then keep in mind that it will not assist you to do nothing at all. Most legal rights need to be exercised before they expire and strict time limits could apply. In any event such reprehensible conduct should not be tolerated because of the impact it could have on your business.   *This content does not purport to give legal advice. Readers must obtain their own legal advice, that applies to the particular circumstances of their case, before taking any action at all.