Prepared by Rosie Jervis
ASIC continues to focus its enforcement activities on holding financial services businesses to account for making false, misleading and deceptive representations.
This week ASIC announced it has commenced civil penalty proceedings against Retail Employees Superannuation Pty Ltd (REST), for false and misleading representations made about the ability of members to transfer their superannuation out of the fund.
This follows news that ASIC has also commenced criminal proceedings against Allianz Australia Insurance and AWP Insurance for a combined eight offences of making false and misleading statements to consumers about insurance products, contrary section 1041E of the Corporations Act. The criminal prosecution relates to publication of information online that ASIC considers misrepresented the characteristics of various insurance products by excluding relevant information about terms, conditions and exclusions.
The criminal charges are being brought in addition to separate civil proceedings against Allianz and AWP for allegedly misleading consumers on Expedia travel websites, which were commenced by ASIC on 30 September 2020.
These criminal and civil proceedings highlight ASIC’s ongoing enforcement focus, in the wake of the Royal Commission, to pursue litigation in order to hold financial services businesses to account for misleading and deceptive conduct.
ASIC has confirmed that as a result of the Covid-19 pandemic it is actively monitoring financial services advertising, including media and social media and using a variety of innovative monitoring tools to identify advertisements that are ‘misleading or deceptive’ or which are ‘promoting products or services which are unsuitable and inappropriate’.
With ASIC’s increased monitoring and enforcement targeting misleading behaviour, it is important to ensure that all content on websites, in corporate promotional material and in advertisements is accurate and up to date. In particular warnings, disclaimers and qualifications should not be inconsistent with other content in an advertisement or promotional material and should not exclude relevant information for consumers.