ACCC moves to protect Australian businesses from overseas publisher

The Australian Competition and Consumer Commission has instituted proceedings in the Federal Court, Perth against a Swiss-based company, IT&TAG, alleging it engaged in misleading and deceptive conduct in relation to an international fax directory operated by the company.

The ACCC alleges that during the period from May 2001 until about March 2002 IT&T AG, sent unsolicited documents by mail from Switzerland to Australian business consumers regarding the IT&T International Fax Directory which is published on the Internet and available on CD-ROM from IT&T AG in Switzerland. The documents, which allegedly had the style and appearance of invoices, were typically for 'US$995.00' and offered a '3% discount if payment made within 14 days'.

The ACCC alleges that given the general appearance of the documents, including their design, layout and words they contain, IT&T AG falsely represented that it had a prior business relationship with the Australian businesses; that it had an existing right to payment; and that a payment to IT&T AG for listing the business in the directory was due and payable.

The ACCC also alleges that the Internet version of the directory implies that each of the Australian businesses listed in the directory had corresponded with IT&T AG with a view to becoming a listed member and had given their authority for their particulars to be entered on the Internet Directory when, in fact, this was not the case.

Remedies sought by the ACCC include the following:

• declarations that IT&T AG has breached sections* 52, 55A and 64 of the Trade Practices Act 1974

• injunctions restraining IT&T AG from sending misleading documents to

Australian business consumers and restraining it from listing in the directory the names of Australian businesses that do not give it written authority to do so

• corrective notices in the Australian press and on the IT&T AG website

• orders for the deletion of names on the directory and for the payment of refunds to businesses that paid the invoices

• the implementation of a compliance program by IT&T AG

• the ACCC's court costs.

* Section 52 of the Trade Practices Act 1974 prohibits a corporation from engaging in conduct which misleads or deceives or is likely to mislead or deceive. Misleading and deceptive conduct includes the making of false representations whether they are express or implied.

Section 55A prohibits businesses from misleading the public about the characteristics, suitability or quantity of services. Services include the promotion, publication and maintenance of a business or fax directory.

Section 64 prohibits unsolicited provision of goods or services coupled with subsequent demand for payment.