By Alli Peacock and Gene Goodsell.
When Cher wrapped up her “farewell” tour in 2005 fans thought they had seen the last of her. However, her recent tweet on 6 March 2012, stated “this will b last one! I want 2 do it well just 1 more time!” But how do we know this “one” more time wont be followed with another “OK, this really is the last time” allegation.
These farewell tours seem to be becoming a fad, especially taking the prime example of John Farnham. How many times did he announce ANOTHER farewell tour? Too many to count. Whilst these tours are intended to please their loyal fans for years of support, it appears they are becoming a marketing ploy in order to strengthen the singer’s financial base or celebrity status. Creating this “fictitious” idea that the singer is retiring, fans are quick to cash in on the one-in-a-lifetime concert.
The consequent backlash from fans is far from pleasing may I add. Disgruntled fans have been known to issue false advertising complaints (in the case of John Farnham). The question remains, if singers are fictitiously announcing farewell tours, should they be liable for false and misleading conduct?
1. Misleading or Deceptive Conduct – under Australian Consumer Law (ACL)
Judges tend to balance the sovereignty of people with the need to foster independence and integrity of the courts. Therefore, a stern view is taken regarding allegations of false and misleading conduct. The plaintiff (in this case would be the person issuing the complaint; fan etc) would need to prove that the singer’s false or misleading conduct caused a direct loss to them and the community.
According to section 18 of the ACL, a person in trade or commerce must not engage in conduct that is misleading or deceptive, or likely to mislead or deceive. In this case, there are no issues with elements of “person”, “in trade or commerce” and “engage in conduct”. This is because Cher (singer) expressly makes the statement in a commercial context. The forth element is the main hurdle to overcome in a purported misleading or deceptive conduct claim.
Support can be obtained through the common law, which has provided various cases in which misleading conduct can be applied. According to the Australian case Taco Company of Australia Inc v Taco Bell Pty Ltd, if the conduct is likely to mislead the hypothetical individual in the class of persons affected, then the defendant may be held liable. Therefore, in the class of Cher fans and general public, it appears that an express statement about a farewell tour would mislead and deceive any person into thinking it would be her “last” tour.
Furthermore, the statement made in 2005 may constitute an offence of deliberately withholding information; Butcher v Lachlan. Since Cher has announced another farewell tour it seems fitting that she has deliberately withheld her intention to continue performing. The principle is based around the “reasonable expectations test”. However, the claim may be too far fetched. It would be hard for the court to prove that Cher had the intention, by her express statement, to deliberately withhold information about another farewell concert, as there is no evidence to prove what she was thinking at the time.
2. Misrepresentation – under Common Law
At common law, misrepresentation constitutes any “statement made by one party (before or at time of contracting) which is one factor inducing entrance to the contract”. The contract of concern here would be the ticket purchase by the fan and the company by which tickets were sold. However, it seems unfair the ticketing company should become liable for a statement made by Cher, given that there was no fault on their behalf.
In order to satisfy this claim, the initial statement made by Cher (in 2005) must have been “untrue” and intended, as well as inducing the contract. Assuming she had the intention to induce the contract, there are no issues with the reliance aspect, as fans purchased their tickets based on their reliance of her statement.
However, these claims are never clear-cut, and the court must be convinced beyond reasonable doubt, that the singer is to blame. Issues arise regarding the untrue statement. Could Cher have honestly believed that her statement was “true” at the time, meaning she would escape liability? Or did she intentionally mislead consumers by creating a false sense of retirement? Unfortunately we may never know.
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact Gene Goodsell, Special Counsel:
Phone: 1300 725 105
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Image Credit: Ambro
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