Authors: Judith Miller, Stephanie Faulkner and Bindhu Holavanahalli
The Comité Interprofessionnel du Vin de Champagne (CIVC) has been partially successful in its misleading and deceptive conduct case against prominent Australian wine educator, Jayne Powell (aka Champagne Jayne). The case related to the use of the term ‘Champagne’ by Ms Powell in relation to wines which were not from the Champagne region of France.
CIVC alleged, amongst other claims, that Ms Powell engaged in misleading and deceptive conduct in contravention of sections 18 and 29 of the Australian Consumer Law (ACL) by:
(a) representing that she had an affiliation with the Champagne sector (represented by CIVC) that she did not have; and
(b) promoting various non-Champagne sparkling wines together with Champagne wines on her social media profiles.
CIVC also alleged that Champagne Jayne had contravened sections 40C and 40E of the Australian Grape and Wine Authority Act 2013 (Cth), but failed to establish its case on this front.
Use of ‘Champagne Jayne’
Ms Powell is a Sydney based wine education and entertainment event consultant. She has been operating a consultancy business under the name ‘Champagne Jayne’ since at least May 2003, and has gained some notoriety as a wine educator, winning a number of awards for her publications and educational activities.
She advertises her business on her website at www.champagnejayne.com and through various social media sites, including a Twitter profile, Facebook account, YouTube account, Instagram account and Vine account, all of which are operated under the name ‘Champagne Jayne’.
Ms Powell is regularly referred to by her moniker ‘Champagne Jayne’ at various events where she appears, and also on promotional appearances on television.
Affiliation with CIVC
The Court did not accept CIVC’s case that Ms Powell’s use of the ‘Champagne Jayne’ moniker generally constituted a representation that she was affiliated with CIVC.
However, the Court did accept that Ms Powell’s use of the term ‘Champagne Ambassador’ to promote herself constituted a representation that she had a formal relationship with the CIVC or the Champagne Sector, when no such formal relationship existed. Ms Powell had argued that she used the term ‘ambassador’ as a term for ‘vocal enthusiast’ of the Champagne sector rather than as a term for ‘authorised representative’.
However, the Court rejected Ms Powell’s interpretation of the word ‘ambassador’ and instead preferred the construction that it meant “an authorised messenger or representative”.
Ms Powell had already made some efforts to remove the ‘ambassador’ language from her website, and appeared to indicate that she intended to remove all remaining references to ‘ambassador’ from her website.
Social Media Representations
The Court found that four types of posts made by Ms Powell on her Facebook and Twitter pages constituted misleading and deceptive conduct under the ACL:
(a) the use of the name Champagne (by the use of Champagne Jayne) in connection with sparkling wines (Category 1);
(b) the use of the name Champagne (by the use of Champagne Jayne) in connection with both sparkling wines and Champagne wines (Category 2);
(c) the use of the name Champagne (by the use of Champagne Jayne) in connection with sparkling wines, but with some qualifying language (Category 3); and
(d) the use of the name Champagne (by the use of Champagne Jayne) in connection with both sparkling wines and Champagne wines, but with some qualifying language (Category 4).
The Categories 2 and 4 posts were photographs of several different wines lined up together, some of which were Champagne wines and others which were sparkling wines.
The Court considered that in Categories 1 and 2, Ms Powell had made no statements that qualified that the sparkling wines were not Champagne wines. In relation to Categories 3 and 4, the Court considered that the qualifying statements that were made (such as “Australian” or “English”) were insufficient to displace the representation that the wines displayed were Champagne wines.
Therefore, the Court’s conclusion was that when Ms Powell used her title ‘Champagne Jayne’ to promote sparkling wines without making it clear that they were not Champagne wines, a consumer viewing such promotional activity may, depending upon his or her knowledge and sophistication, assume that what is being referred to were Champagne wines.
This result may appear surprising, especially in relation to Categories 3 and 4 where Ms Powell specifically made representations that the sparkling wines in question were from regions other than Champagne, France. The Court appears to have come to its conclusion on the basis that the relevant section of the public would not necessarily know that sparkling wines from regions other than Champagne, France are not ‘Champagne’ wines and therefore are likely to make erroneous assumptions about the nature of the wines unless the posts were accompanied by a clear qualifying statement, especially in light of Ms Powell’s reputation as a ‘Champagne’ connoisseur.
The Ephemeral Nature of Social Media
It is established law that conduct which is transitory or ephemeral in nature, where any likely misleading impression is likely to be quickly corrected does not constitute misleading and deceptive conduct.
The Court held that though ‘tweets’ and social media posts may be, in their nature, transitory or fleeting, there is nevertheless a more permanent record of the communication. Further even though one ‘tweet’ may be fleeting, a pattering of infringing conduct established through repeated posts could be enduring enough to constitute potentially infringing conduct.
Points to Remember
This case demonstrates the relevance of context and surrounding circumstances in assessing whether a misleading or deceptive representation has been made.
Here, it appears that Ms Powell’s conduct was not misleading or deceptive because Ms Powell specifically represented that sparkling wines were ‘Champagnes’, but because she did not qualify her posts about sparkling wines in light of common misconceptions held by consumers about the distinctions between Champagne wines and sparkling wines.
This case therefore serves as a reminder that traders should keep in mind any commonly held misconceptions in the public about their industry and ensure that any representations they make (whether direct or implied through conduct) take these misconceptions into account. Traders should also carefully review posts made on social media for potentially misleading implications even though social media platforms are designed to be fugacious in nature.
It is important to note that parties found to be breaching the misleading and deceptive conduct provisions of the ACL can be liable for significant damages suffered by the other party. If the other party establishes that a misleading representation has been made under section 29 (which includes misleading or false representations that the person or goods/services are affiliated with another party), a pecuniary penalty of $1.1 million (if the person is a body corporate) or $220,000 (if the person is an individual) can be imposed in addition to the damages claim.