Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74

Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) [2011] FCA 74

Allergy Pathway knew that persons had published testimonials on its Twitter and Facebook pages and took no steps to remove them. Although it was not responsible for the initial publication by third parties, by knowing of the publications and deciding not to remove them it accepted responsibility for them and caused them to continue to be published, thereby breaching its undertaking. Mr Keir, as sole director, was involved in that conduct and breached his undertaking. The breaches were serious but non-contumelious, and a fine of $7500 for each respondent, together with injunctions, corrective advertising and indemnity costs, was appropriate.

Jurisdiction
Australia
Judgment Date
10 February 2011
Procedural Posture
Contempt of Court Application for Breach of Undertakings / Notice of Motion to Punish Respondents for Contempt
Outcome
The Court declared both respondents guilty of contempt for breaches of undertakings given on 27 August 2009 and imposed fines, injunctions, corrective advertising and indemnity costs orders.
Legal Topics
['civil Contempt' 'breach of Undertaking to the Court' 'publication on Facebook and Twitter' 'third Party Testimonials on Social Media' 'corrective Advertising' 'penalty for Contempt']
['contempt of Court' 'consumer Law' 'misleading or Deceptive Conduct'] ['civil Contempt' 'breach of Undertaking to the Court' 'publication on Facebook and Twitter' 'third Party Testimonials on Social Media' 'corrective Advertising' 'penalty for Contempt']

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Procedural Posture

Contempt of Court Application for Breach of Undertakings / Notice of Motion to Punish Respondents for Contempt

Legal Issues

  1. 1 ['Whether Allergy Pathway breached undertakings given to the Federal Court on 27 August 2009 by making, publishing or causing to be published prohibited representations about allergy diagnosis and treatment.' "Whether statements posted by third parties on Allergy Pathway's Facebook and Twitter pages constituted publication by Allergy Pathway where it knew of the statements and did not remove them." "Whether Mr Keir breached his undertaking by being directly or indirectly knowingly concerned in Allergy Pathway's conduct." 'What penalty and ancillary orders were appropriate for the contempts.']

Ratio Decidendi

Allergy Pathway knew that persons had published testimonials on its Twitter and Facebook pages and took no steps to remove them. Although it was not responsible for the initial publication by third parties, by knowing of the publications and deciding not to remove them it accepted responsibility for them and caused them to continue to be published, thereby breaching its undertaking. Mr Keir, as sole director, was involved in that conduct and breached his undertaking. The breaches were serious but non-contumelious, and a fine of $7500 for each respondent, together with injunctions, corrective advertising and indemnity costs, was appropriate.

Court Disposition

The Court declared both respondents guilty of contempt for breaches of undertakings given on 27 August 2009 and imposed fines, injunctions, corrective advertising and indemnity costs orders.

Orders

  • ['The first respondent is guilty of contempt by reason of its breaches of the undertaking it gave to the Federal Court of Australia on 27 August 2009.' 'The second respondent is guilty of contempt by reason of his breaches of the undertaking he gave to the Federal Court of Australia on 27 August 2009.' 'The first...