Your Honest Ad Might Still Be Breaking the Law
Here is the fact that surprises most business owners. You can break the law in your advertising without lying or meaning to mislead anyone at all.
Under the Australian Consumer Law, misleading conduct is judged by its effect, not your intent. If what you say or imply leaves a customer with the wrong overall impression, you have a problem, no matter how honest you were. The regulator is blunt about it: it makes no difference whether a business meant to mislead or not.
So the safe test for any claim is not “did I believe it?” It is three questions. Is it true? Can I prove it right now with the evidence I have? And is the overall impression accurate, including anything I left out? If you cannot answer yes to all three, do not make the claim. That single habit prevents most misleading conduct.
Two more rules finish the picture. A promise about the future, such as a result or a timeframe, needs reasonable grounds. And vague praise is fine, but a specific, checkable claim must be true.
Get this right, and your marketing builds trust instead of risk. Get it wrong, and a single line on your website can turn into a complaint, an infringement notice, or worse.
That is the core message. The rest of this article explains the rules, the traps, and a simple check you can run before anything goes out.
Free Resource: The Claim Check
To make it easy, we have prepared a free one-page Claim Check that you can keep beside your keyboard and run anything over before it goes live
Digging deeper
Everything above is the bottom line. What follows are the details: the two legal rules where honest businesses slip, and how to protect yourself. Read on if you write your own ads, quotes, or web copy.
The two rules behind misleading conduct
The law works on two levels, and it helps to know both.
The broad rule is section 18. It says a business must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive. It is deliberately wide. It covers what you say, what you imply, and what you leave out, across every ad, quote, website, and conversation.
The specific rule is section 29. It lists specific false or misleading claims that are banned, such as those about quality, value, testimonials, sponsorship, and price. Unlike section 18, breaching section 29 can attract penalties.
The two often overlap, and the same sentence can breach both as misleading conduct. You do not need to work out which one applies. You need to make sure your claims are accurate, because misleading conduct under either rule is judged the same way: by the impression on a reasonable member of your audience.
The traps that catch honest businesses
Most misleading conduct is not a bold lie. It is a small slip. These are the ones we see most.
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Silence and half-truths. Leaving out something a customer would expect to know can mislead just as much as a false statement, and it is misleading conduct just the same. A price that is technically correct but hides a compulsory fee creates a false impression.
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Claims about the future. “This will halve your tax” or “we will finish in three weeks” are promises about future matters. The law treats them as misleading unless you had reasonable grounds, and the burden is on you to show them. An honest hope is not reasonable grounds.
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Puffery mistaken for fact. “The best coffee in town” is obvious exaggeration and generally safe. “Voted number one in 2025” is a specific claim you must be able to prove. The line is whether the claim is measurable.
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Fine print that contradicts the headline. If the big promise says one thing and the disclaimer says another, courts look at the dominant message. A prominent claim is not saved by a footnote almost no one reads.
None of these needs bad intent. Each of them is misleading conduct if it leaves the wrong impression.
Testimonials and reviews are a minefield
Reviews sell. That is exactly why the law watches them closely.
A testimonial must be genuine. Writing your own reviews, buying them, or posting a made-up quote is a clear breach and a textbook case of misleading conduct. So is publishing a review by a staff member or the owner without disclosing the connection. If you offer an incentive for a review, it must be given whether the review is positive or negative, and the incentive must be disclosed.
Suppressing honest criticism is also risky. Deleting or hiding genuine negative reviews can make your overall rating misleading, which is misleading conduct in its own right. The safe path is simple. Only publish real reviews, disclose any relationship or incentive, and never invent social proof you have not earned.
Why professional services carry the sharpest risk
Every business makes claims. Professional services live or die by them. When you sell expertise, your marketing is a set of promises about outcomes, skill, and standing. That puts the sector squarely in the path of misleading conduct rules.
Think about the claims a firm is tempted to make. “We win ninety-five per cent of our cases.” “Guaranteed tax savings.” “Australia’s leading advisory firm.” “Specialist” and “expert.” Each of these is a specific, checkable claim, and each is potentially misleading conduct without solid proof. An outcome you cannot control cannot be guaranteed. A ranking you cannot evidence cannot be stated.
Two extra points sharpen the risk. First, many professions have their own advertising rules in addition to the Australian Consumer Law. Lawyers, accountants, financial advisers, and tax agents all work under professional standards that limit outcome claims and, in some cases, restrict or ban testimonials. The ACL is the floor, not the ceiling. Second, reputation is the whole business. For a firm that sells trust, a public finding of misleading conduct is not just a penalty. It is a stain on the one asset that brings clients in.</p
This is a large part of the economy to get wrong. Professional, scientific and technical services are among Australia’s largest sectors, with around 276,000 businesses and more than 1 million jobs. Most are small firms and sole practitioners who write their own marketing, often late at night, with no one to check the claims. That is exactly where misleading conduct begins.
The same logic reaches every sector SBAAS serves. An early learning centre advertising ratios and inclusions, a tradesperson promising a completion date, an allied health clinic claiming an outcome, and a charity describing where donations go all make claims that must be true and provable. The words change. The test does not.
What it costs when a claim goes wrong
Misleading conduct is the most litigated area of Australian commercial law, and the regulator enforces it hard.
The penalties are real. Section 18 itself carries no fine, but it opens the door to injunctions, damages, and orders to publish corrections. Section 29 carries penalties, and for a company these now reach the greater of $100 million, three times the benefit, or 30 per cent of turnover, after the 2026 increase. A small business will not face the maximum penalty, but infringement notices of several thousand dollars and public naming for misleading conduct are common and very real.
The examples make the point. Samsung was ordered to pay $14 million for misleading water-resistance claims about its phones. The health booking platform HealthEngine paid $2.9 million, in part for publishing misleading patient reviews. A removalist paid an infringement notice for copying testimonials from another site. These are not obscure edge cases. They are ordinary claims that went one step too far.
The world is cracking down on fake claims
Australia is not alone, and the global direction is clear. Regulators everywhere are tightening the rules on misleading claims and, in particular, on reviews.
In the United States, a Federal Trade Commission rule that took effect in late 2024 bans fake reviews and testimonials outright, with penalties that can reach tens of thousands of dollars for each fake review. In the United Kingdom, fake and hidden incentivised reviews became unlawful in 2025, and the regulator can fine a business up to 10% of its global turnover. The United Kingdom regulator notes that almost nine in ten people rely on reviews when they choose a product or service.
The message is the same across borders. Claims must be honest, and reviews must be real. A business that already runs every claim through a simple check is ready for wherever the rules go next.
A five-question check before you hit publish
You do not need a legal team. You need a habit. Before any ad, quote, or web page goes out, run it through five questions. It is the simplest guard against misleading conduct there is.
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Is it true? Not roughly true. Actually true.
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Can I prove it now? With evidence I already hold, not evidence I hope to find.
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Is the overall impression fair? Including what I left out and what the fine print says.
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If it is about the future, do I have real grounds? Not just optimism.
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Are my reviews and testimonials genuine and disclosed? Every one of them.
If any answer is no, rewrite it or remove it. That five-minute check is the cheapest insurance in your business.
The bottom line
Misleading conduct is judged by the impression you leave, not the honesty you feel. You can mislead without lying, and good intentions will not save you. Guard against misleading conduct by making only claims that are true and provable, treating promises about the future with care, and keeping your reviews real. Do that, and your marketing becomes a source of trust rather than a source of risk.
Good marketing and good compliance are the same thing: telling the truth in a way that earns trust. At SBAAS, we help small business owners review their claims, contracts, and marketing before a problem finds them, so confidence replaces guesswork. If you would like a second set of eyes on your advertising, or you want to learn more about how we support owners across professional services, trades, allied health, early childhood, and the not-for-profit sector, we would be glad to hear from you. Learn more about who we are and how we help at https://sbaas.com.au/about-us/.
Sources
Australian Competition and Consumer Commission. (2025). 2025-26 compliance and enforcement policy and priorities. https://www.accc.gov.au/system/files/compliance-enforcement-policies-priorities-2025-26.pdf
Australian Competition and Consumer Commission. (2026). False or misleading claims. https://www.accc.gov.au/consumers/advertising-and-promotions/false-or-misleading-claims
Australian Competition and Consumer Commission. (2026). Online reviews for products and services. https://www.accc.gov.au/business/advertising-and-promotions/online-reviews-for-product-and-services
Competition and Markets Authority. (2025). Fake reviews guidance (CMA208). https://assets.publishing.service.gov.uk/media/67eeb64fe9c76fa33048c790/CMA208_-_Fake_reviews_guidance.pdf
Federal Trade Commission. (2024). Federal Trade Commission announces final rule banning fake reviews and testimonials. https://www.ftc.gov/news-events/news/press-releases/2024/08/federal-trade-commission-announces-final-rule-banning-fake-reviews-testimonials
Jobs and Skills Australia. (2025). Professional, scientific and technical services. https://www.jobsandskills.gov.au/data/occupation-and-industry-profiles/industries/professional-scientific-and-technical-services
Eric Allgood is the Managing Director of SBAAS and brings over two decades of experience in corporate guidance, with a focus on governance and risk, crisis management, industrial relations, and sustainability.
He founded SBAAS in 2019 to extend his corporate strategies to small businesses, quickly becoming a vital support. His background in IR, governance and risk management, combined with his crisis management skills, has enabled businesses to navigate challenges effectively.
Eric’s commitment to sustainability shapes his approach to fostering inclusive and ethical practices within organisations. His strategic acumen and dedication to sustainable growth have positioned SBAAS as a leader in supporting small businesses through integrity and resilience.
Qualifications:
- Master of Business Law
- MBA (USA)
- Graduate Certificate of Business Administration
- Graduate Certificate of Training and Development
- Diploma of Psychology (University of Warwickshire)
- Bachelor of Applied Management
Memberships:
- Small Business Association of Australia –
International Think Tank Member and Sponsor - Australian Institute of Company Directors – MAICD
- Institute of Community Directors Australia – ICDA
- Australian Human Resource Institute – CAHRI
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