Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/63

 212 First, the process of characterising whether conduct addressed to the public at large is misleading or deceptive or likely to mislead or deceive generally requires consideration of whether "the impugned conduct viewed as a whole has a tendency to lead a person into error" (emphasis added): Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, 319 [25] (French CJ). This is assessed objectively. Although evidence that a particular person has been misled or deceived might be taken into account, that evidence is not necessary nor is it always sufficient. The objective characterisation also means that conduct which is only misleading for a temporary period might still amount to misleading or deceptive conduct when viewed as a whole. Further, it is unnecessary to establish that any actual or potential consumer has taken or is likely to take any positive step in consequence of the misleading or deception.

213 The need for objective assessment of the conduct in light of all circumstances, and as a whole, was emphasised by Gummow, Hayne, Heydon and Kiefel in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, by reference to Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592, 625 [109] (McHugh J) (footnotes omitted):

214 One consequence of the need to consider the conduct in light of all relevant circumstances is that any allegedly misleading representation must be read together with any qualifications and corrections to that statement. Hence, although a qualification to a statement might be effective to neutralise an otherwise misleading representation, this might not always be so, particularly if the misleading representation is prominent but the qualification (often linked to the representation by an asterisk) is not: Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1, 17 [37] (Stone J). As Keane JA expressed