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44 J. Consumer Pol'y 1 (2021)

handle is hein.journals/jrncpy44 and id is 1 raw text is: Journal of Consumer Policy (2021) 44:1-19
ORIGINAL PAPER                                                                   -
Should Australia Introduce a Prohibition on Unfair                           Checkfor
Trading? Responding to Exploitative Business Systems                         U;dater
in Person and Online
J. M. Paterson'    E. Bant2
Received: 10 March 2020 /Accepted: 16 July 2020! Published online: 22 August 2020
C Springer Science+Business Media, LLC, part of Springer Nature 2020
Australian consumer protection law contains broad and flexible prohibitions on misleading
and unconscionable conduct in trade or commerce. Yet concerns have been raised that these
prohibitions are unsuitable for responding to predatory business systems. These are busi-
nesses that, by design or operation, target consumers experiencing vulnerability to offer
costly products ill-suited to their needs. This concern has arisen in response to prominent
instances of products of dubious efficacy offered to marginalized communities. It has also
arisen from concerns over the increasing potential for data-driven digital marketing to
manipulate consumer choice by targeting with fine-grained accuracy consumer vulnerabil-
ities. In response to these concerns, it has been suggested that the Australian Consumer Law
should be reformed, by introducing a prohibition on unfair trading inspired by the general
prohibitions on such conduct in the EU and USA. This paper explores the key considerations
relevant in assessing the merits of this proposed statutory transplant. Ultimately, the paper
is supportive of the proposed reform, while also recognizing its limits.
Keywords Unfair commercial practices - Unfair trading - Unconscionable conduct - Unfair
business systems - Disadvantaged communities - Digital manipulation - Regulatory design
Australian consumer protection law is replete with principles-based prohibitions on conduct
that offends community values and disrupts the fair and efficient operation of the market. In
This article is part of an Australian Research Council funded project DP180100932 on coherence in the general
prohibition on misleading conduct in the Australian Consumer Law. Research assistance provided by Yi Tung
and Calvin Collins, JD Candidates, Melbourne Law School. Errors are our own.
W J. M. Paterson
jeanniep @unimelb.edu.au
E. Bant
Melbourne Law School, The University of Melbourne, Melbourne, Australia
2   Law School, University of Western Australia, Perth, Australia

e Springer

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