If you run a business in Australia, your marketing and sales communications do more than win customers - they can also create legal risk.
One of the most common (and costly) legal issues we see for small businesses is confusion around what “deceptive conduct” means, and how it overlaps with misleading conduct under the Australian Consumer Law (ACL).
This matters whether you’re selling products online, quoting for services, running ads on social media, listing “before and after” results, or even answering customer questions in DMs. A statement can be misleading even if you didn’t intend to mislead, and even if you genuinely believed it was true.
Below, we’ll break down what deceptive conduct means in a practical way, when it becomes a legal problem, and how you can build safer systems in your business so you can keep growing with confidence.
What Does “Deceptive Conduct” Mean In Australia?
In everyday language, “deceptive conduct” usually means behaviour that tricks or misleads someone.
In Australian business law, people often use “deceptive conduct” and “misleading or deceptive conduct” interchangeably. The key legal concept most businesses need to understand is misleading or deceptive conduct under the ACL.
In broad terms, deceptive (or misleading) conduct is when your business does something - or says something - that leads customers (or other businesses) into a false impression.
It’s Not Just About Lies
A big misconception is: “We didn’t lie, so we’re fine.”
In reality, conduct can be misleading if it:
- creates a false impression (even accidentally)
- leaves out important information (so the overall message is misleading)
- uses unclear wording that causes customers to misunderstand what they’re buying
- relies on unrealistic results or expectations
For example, saying “from $99” can be misleading if almost no one can actually purchase the product or service at $99 due to unavoidable add-ons.
Where The Rules Come From (Australian Consumer Law)
The ACL is a national law that applies across Australia. It covers consumer rights and fair trading rules, and it applies to most businesses - including online businesses, service providers, and retailers. It can also apply in some business-to-business (B2B) situations, particularly where the conduct occurs “in trade or commerce” and causes loss, but the rules and remedies can differ depending on the circumstances.
A core provision is section 18, which prohibits misleading or deceptive conduct in trade or commerce.
There are also more specific rules about certain types of statements (like performance claims, country-of-origin claims, discounts, or testimonials), including section 29 on false or misleading representations.
Does Intent Matter?
Often, no.
Many misleading conduct laws focus on the effect of what was said or done - not whether you meant to mislead. So “we didn’t intend to” isn’t always a defence.
That’s why it’s so important to put compliance systems in place early, especially as your marketing scales (ads, affiliates, influencers, sales reps, websites, and automated email flows).
What Is Misleading Conduct (And How Is It Different To Deceptive Conduct)?
If you’re searching for “misleading conduct meaning” or “what is misleading conduct”, you’re probably trying to work out whether your business communications could get you into trouble.
In practice, most Australian businesses should treat the terms like this:
- Misleading conduct is a broad concept - it covers statements, advertising, omissions, and behaviour that misleads someone.
- Deceptive conduct is commonly used to describe misleading conduct that has a “trick” element to it, but legally it’s usually dealt with through the same ACL framework.
So if your goal is compliance, the best approach is: assume anything that creates a misleading impression can be risky, whether or not it feels “deceptive”.
If you want a deeper legal breakdown of how courts assess this, it can help to read about misleading or deceptive conduct and the typical elements that get considered.
Common Examples Of Misleading Or Deceptive Conduct For Small Businesses
Misleading conduct issues often happen in day-to-day business - especially where you’re moving fast, competing on price, or trying to stand out with strong marketing claims.
Here are common risk areas we see for Australian small businesses.
- “Guaranteed results” (when results vary and depend on customer behaviour or circumstances)
- “Number one in Australia” or “Australia’s best” (without a reasonable basis)
- before-and-after photos that don’t represent typical outcomes
- using filters or editing that changes what the product/service actually looks like
This also extends to short-form content (Reels/TikTok), influencer scripts, and affiliate marketing. If someone is promoting your product and their content is misleading, it can still become your problem.
Pricing, Discounts, And “Limited Time” Offers
- showing a “was” price that wasn’t a genuine previous price
- advertising “free shipping” but inflating product prices to cover shipping
- using countdown timers or “only 2 left” notices that aren’t real
- excluding unavoidable fees until the final checkout step
Pricing transparency is a major focus area because it directly affects purchasing decisions.
- claiming a product has features it doesn’t actually have
- claiming certifications or approvals you don’t hold
- “eco-friendly”, “biodegradable”, or “plastic-free” claims that aren’t accurate
- country-of-origin claims (for example, implying “Made in Australia” when it’s not)
Even if only part of your audience interprets the message in a misleading way, that can still be an issue - especially if that interpretation is reasonable.
Services, Scope, And Deliverables
Service businesses commonly run into trouble when the scope of work is unclear.
For example:
- promising a “complete” service when some key items are excluded
- quoting based on assumptions you didn’t disclose
- advertising a turnaround time that isn’t realistic
- using testimonials that imply outcomes you can’t generally deliver
This is where well-drafted customer-facing terms can really help - including clear exclusions, variation processes, and how you handle delays.
For online businesses, having fit-for-purpose Website Terms and Conditions can help set expectations and reduce disputes (though it won’t “override” the ACL - it needs to work alongside it).
Comparisons With Competitors
Comparative advertising can be allowed, but it becomes risky when comparisons aren’t accurate, current, or like-for-like.
If you say “50% cheaper than competitors” you should have evidence to support it and be confident the comparison remains true over time.
Why Misleading Conduct Is Risky (Even If You’re A Small Business)
It’s easy to assume misleading conduct rules are only enforced against large companies. But small businesses can absolutely be targeted - by regulators, competitors, or customers.
Regulator Action (ACCC And State Fair Trading)
The Australian Competition and Consumer Commission (ACCC) and state/territory fair trading regulators can investigate and take action.
Depending on the issue, outcomes can include:
- enforceable undertakings
- court proceedings
- penalties (in serious cases)
- corrective advertising (you may need to publicly correct the impression)
Customer Claims And Chargebacks
Even without a regulator, misleading claims can trigger:
- refund demands and disputes
- complaints to platforms (Google, Meta, marketplaces)
- chargebacks
- negative reviews that can seriously harm your reputation
Competitor Disputes
Competitors sometimes take action if your advertising gives you an unfair advantage - particularly around pricing, “best in market” claims, or claims about being the only provider.
Contract Problems (And “Unhappy Customer” Spirals)
Misleading conduct risk isn’t limited to ads. It can also come from:
- sales calls
- proposals and quotes
- sales pages and landing pages
- automated email sequences
If customers think they bought one thing but you deliver another, even a solid contract can’t always “fix” a misleading overall impression. Prevention is far easier than trying to unwind a dispute later.
How To Reduce The Risk Of Misleading Or Deceptive Conduct In Your Business
You don’t need to strip your marketing of personality or stop selling confidently. The goal is to build a business that sells clearly and honestly - and that can back up its claims.
1. Audit Your “Big Claims” (And Keep Evidence)
As a starting point, list the big statements your business uses, such as:
- “guaranteed”
- “clinically proven”
- “fastest”
- “best”
- “100% safe”
- “no hidden fees”
Then ask: Can we prove this? If the answer is “not really”, reword it into something accurate and supportable.
2. Make Your Pricing And Inclusions Easy To Understand
Customers shouldn’t need to “dig” to find key conditions, fees, or exclusions.
Try to ensure your website, proposals, and checkout flow clearly explain:
- what’s included (and what isn’t)
- delivery timelines and dependencies
- add-on costs
- subscription renewals (if applicable)
3. Train Your Team (And Your Contractors)
Misleading conduct often happens because a team member is trying to be helpful and “sell the dream”.
It’s worth creating basic scripts and guardrails for:
- sales calls
- DM responses
- refund conversations
- responding to performance or results questions
If you use influencers, affiliates, or lead gen agencies, you should also set clear rules about what they can and can’t claim.
4. Use Proper Legal Documents That Match Your Business Model
Your customer-facing terms and policies won’t eliminate misleading conduct risk by themselves, but they can reduce misunderstandings and show that you’re being upfront about how your business operates.
Depending on your business, this may include:
- Customer contracts / service terms that clearly define scope, exclusions, variation processes, and timelines
- Refund and returns processes that reflect the ACL and your operational reality
- Website terms that set clear rules around orders, promotions, and disclaimers
If you collect customer data (even just names, emails, or shipping details), having a clear Privacy Policy also helps you communicate transparently about what happens with that information.
5. Be Careful With Disclaimers
Disclaimers can help clarify context (for example, that results vary), but they’re not a magic shield.
If your main headline screams one message, and a tiny disclaimer quietly contradicts it, you can still have a problem. A good rule of thumb is: the overall impression must be accurate.
6. Get Advice Early When You’re Launching Or Scaling Marketing
Misleading conduct issues often spike when a business starts scaling ads, hiring a sales team, launching a new product, or rolling out a new pricing model.
At those moments, it can be worth speaking to a consumer lawyer so you can keep your growth plans moving without accidentally building risk into your marketing.
What Should You Do If Someone Accuses Your Business Of Misleading Or Deceptive Conduct?
If you receive an angry customer email, a complaint from a competitor, or a regulator enquiry, it’s normal to feel rattled - but you’ll be in a stronger position if you respond calmly and strategically.
Step 1: Don’t Double Down
A rushed reply can make things worse, especially if you make new statements that are also misleading or inconsistent with what you advertised.
Pause, gather the facts, and review what was said (ads, web pages, DMs, email campaigns, invoices, and contracts).
Step 2: Preserve Evidence
Save copies of:
- the exact ad or page the customer saw (screenshots, URLs, timestamps)
- the messages exchanged
- your internal notes (what the team member told them and why)
- your basis for any claims (testing data, supplier specifications, pricing history)
This matters because marketing content can change quickly - and you need a clear record of what the customer is responding to.
Step 3: Consider Practical Resolution
Sometimes the commercial reality is that a fast resolution (refund, partial refund, replacement, re-supply, or service credit) is cheaper and better for your brand than a long dispute.
However, you should still make sure the resolution aligns with your legal position and doesn’t accidentally admit something you don’t mean to admit.
Step 4: Fix The Root Cause
Even if you resolve one complaint, you should ask: could 50 other customers interpret the same message the same way?
If yes, adjust your marketing, sales scripts, onboarding emails, landing pages, and terms so you don’t repeat the issue.
Step 5: Get Legal Advice If The Risk Is Escalating
If the allegation involves significant money, reputational harm, or regulator involvement, it’s worth getting advice early. The sooner you understand your options, the more control you usually have over the outcome.
Key Takeaways
- Deceptive conduct in business usually refers to behaviour that misleads customers or creates a false impression, and it’s often dealt with legally as misleading or deceptive conduct under the Australian Consumer Law.
- Misleading conduct isn’t only about deliberate lies - it can include omissions, unclear statements, unrealistic claims, and “overall impressions” that lead customers to misunderstand what they’re getting.
- High-risk areas for small businesses include advertising claims, pricing and discounts, performance promises, testimonials, and unclear service scope.
- The risk is not just regulatory action - misleading conduct issues can trigger refunds, disputes, chargebacks, competitor complaints, and reputational damage.
- Reducing risk usually comes down to clearer marketing, evidence-backed claims, staff training, and the right customer-facing terms and policies.
- If you’re accused of misleading conduct, preserve evidence, avoid rushed replies, fix the underlying issue, and get advice early if things escalate.
If you’d like a consultation on misleading or deceptive conduct compliance (including reviewing your ads, website claims, promotions, or customer terms), you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
