The Federal Court has decided that Saatchi & Saatchi Australia Pty Ltd had not been a principal in alleged misleading and deceptive conduct in an advertising campaign for NRMA Health Pty Ltd.
"Previously, the Federal Court had made several orders by consent including against NRMA Health Pty Ltd for misleading advertising which had appeared in various newspapers in September last year and against NRMA Insurance Limited for a misleading publication on its website", ACCC Chairman, Professor Allan Fels, said.
"The ACCC had also alleged that Saatchi & Saatchi, as the agency which prepared the advertising, was a principal in the conduct.
"Yesterday Justice Jacobson found that the agency was not a principal in the misleading conduct".
In his judgment, he said the agency "had prepared the 'bullet', but it was the NRMA companies which took the step of disseminating it. Saatchi did not disseminate the advertisement because it carefully structured its role so that, at each stage, it went back to its client, the NRMA companies, leaving them to make the ultimate decision to go forward with the act of dissemination of the advertisement".
Professor Fels said this action differed from recent proceedings undertaken by the ACCC, against Medical Benefits Fund of Australia Ltd and John Bevins Pty Ltd, the advertising agency which managed MBF's campaign, also for misleading and deceptive conduct in advertising its health insurance products.
"In that case Bevins was found to be knowingly concerned in or a party to the contraventions", Professor Fels said.
"It should be noted also that MBF in its case was successful in having orders made by Justice Hill against that company stayed, pending an appeal, on Wednesday".
Professor Fels said that the ACCC would examine the yesterday's reasons for judgment before deciding if it would appeal the Saatchi case.