"Please Watch this Ad ... Or Else": Could Advertisements Requiring User Focus or Response be "Coercive" under the Australian Consumer Law?

Abstract

From posters in shop windows and on light posts to pop-ups and banner ads on computers and smartphones, advertising has evolved dramatically over the past century. In recent times, emergent technologies have seen advertising take another quantum leap forward. Some major corporations are now employing what this article terms ‘compulsive advertising technologies’ (‘CATs’) to market to consumers. CATs require consumers to actively engage with the advertisement shown in order to terminate. Some ads track eye movements, read facial profiles, and even demand verbal responses to cues. This article is the first to consider whether the use of CATs could amount to ‘coercive’ conduct, proscribed by s 50 of the Australian Consumer Law (‘ACL’), by using compulsion to negate the consumer’s choice or freedom to act in circumstances that are unreasonable or unjustifiable. Through a doctrinal analysis, it is argued that existing case law interpreting ACL s 50 supports this view. The article concludes by suggesting amendment to the consumer law to provide clarity as to the sorts of non-physical conduct that can amount to coercion.