Australian Competition and Consumer Commission v Service Seeking Pty Ltd

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant

AND: SERVICE SEEKING PTY LTD (ACN 124 055 465) Respondent

JUDGE: JACKSON J DATE OF ORDER: 22 JULY 2020

1. The respondent (Service Seeking) has, in trade or commerce, in connection with the supply or possible supply of services and in connection with the promotion of the supply or use of services, made false or misleading representations that purport to be testimonials by persons relating to services, in contravention of s 29(1)(e) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA) being the Australian Consumer Law (ACL), by: (a) Between 12 July 2016 and 21 March 2018, publishing and leaving visible on the profile of businesses on its website, http://www.serviceseeking.com.au/ (Website), and its related application for mobile devices (App), reviews which, in their terms and in the context in which they appeared, purported to have been given by customers who used the services of the businesses on the Website or the App, but which were created by the businesses themselves through a feature on the Website and the App (Fast Feedback feature) and published automatically by Service Seeking through a mechanism of the Website and App (Default Publish Mechanism), in the form of Annexure A - First Version of Fast Feedback. (b) From 22 March 2018 to 31 August 2018, publishing and leaving visible on the profile of businesses on the Website and the App reviews and star ratings which, in their terms and in the context in which they appeared, purported to have been given by customers who used the services of the businesses on the Website or the App, but which were created by the businesses themselves through the Fast Feedback feature and published by Service Seeking through the Default Publish Mechanism, in the form of Annexure B - Second Version of Fast Feedback. (c) From 1 September 2018 to 29 November 2018, publishing and leaving visible on the profile of businesses on the Website and the App reviews and star ratings which, in their terms and in the context in which they appeared, purported to have been given by customers who used the services of the businesses on the Website or the App, but which were created by the businesses themselves through the Fast Feedback feature and published by Service Seeking through the Default Publish Mechanism, in the form of Annexure C - Third Version of Fast Feedback. (d) From 30 November 2018 to 13 May 2019, leaving visible on the profile of businesses on the Website and the App the reviews and star ratings which were first published between 12 July 2016 and 29 November 2018, as described in paragraphs (a) to (c) above.
2. Since at least 12 July 2016 to 13 May 2019, Service Seeking has, in trade or commerce, engaged in conduct that is misleading and deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL, by publishing and leaving visible on the profile of businesses on the Website and the App reviews and star ratings generated through the Fast Feedback feature and published through the Default Publish Mechanism, which had the effect of conveying the false impression that: (a) the number of favourable reviews of businesses by Customers on the Website and App was higher than was the case; and (b) the overall star rating of businesses by Customers on the Website and App was higher than was the case.
3. Since at least 12 July 2016 to 13 May 2019 Service Seeking has, in trade or commerce, engaged in conduct that is liable to mislead the public as to the nature, the characteristics, and the suitability for the purpose of the services of businesses on its Website and the App, in contravention of s 34 of the ACL, by publishing and leaving visible on the profile of businesses on the Website and the App the reviews and star ratings generated through the Fast Feedback feature and published through the Default Publish Mechanism, which had the effect of conveying the false impression that: (a) the number of favourable reviews of businesses by Customers on the Website and App was higher than was the case; and (b) the overall star rating of businesses by Customers on the Website and App was higher than was the case; and thereby was liable to create a more positive or favourable impression in consumers' minds as to the nature, the characteristics and the suitability for their purpose of services of businesses on the Website and App.

Injunction 4. Service Seeking, whether by itself, its servants, agents, or affiliates, for a period of three years from the date of this order, in trade or commerce, is restrained from publishing any review relating to services provided by a business registered on the Website or App without the express written consent of the person who is named as the person providing the review or the person to whom services were provided.

Pecuniary Penalty 5. Within 30 days of the date of this order, Service Seeking must pay to the Commonwealth of Australia a pecuniary penalty pursuant to s 224(1) of the ACL in the sum of $600,000 in respect of the contraventions referred to in the Declarations made in paragraphs 1 and 3 of these Orders.

Corrective Publication Notice 6. Within 14 days of the date of this order, Service Seeking must publish, or cause to be published, on the homepage of its Website and App, a corrective notice in the terms and form set out in Annexure D - Corrective Publication Notice (Notice) and ensure that the Notice complies with the following specifications: (a) the Notice is viewable by clicking a 'click through' icon located on the homepage of the Website and App; (b) the 'click through' icon referred to in the previous sub-paragraph is located in the top third of the Website and App and is not obscured, blocked or interfered with by any operation of the Website and App; (c) the 'click through' icon: (i) contains the words: 'Misleading representations and conduct by Service Seeking Pty Ltd - Corrective Notice Ordered by Federal Court of Australia - Click Here' in upper case 14 point, bold, black, Avenir, Lucida Grande, or Roboto font on a white background, centred and in a bordered box; (ii) the bordered box and its contents, including the white space, is to operate in the form of a one-click hyperlink to the said Notice; and (iii) the border must be black; (d) the Notice must occupy the entire webpage that is accessed via the 'click-through' icon referred to above; (e) the Notice must not be displayed as a 'pop up' or 'pop under' window; (f) the Notice must be crawlable (i.e. its contents may be indexed by a search engine); and (g) the Notice must be maintained for a period of 60 days from the date of publication.

Compliance Program 7. Service Seeking, at its own expense, must establish and implement a compliance program with the terms and content of such program to be agreed between the applicant and Service Seeking, or in the absence of agreement within 14 days of the date of this order, to be ordered by the Court.

Costs 8. Service Seeking must pay the applicant's costs to be fixed in the sum of $40,000 within 28 days of the date of this order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexure A - First Version of Fast Feedback

JACKSON J: 1 The respondent, Service Seeking Pty Ltd (Service Seeking) operates a website and an associated mobile app. These function as an online tasking platform, which helps connect tradespeople and others with customers who have jobs to be done. 2 The Australian Competition and Consumer Commission (ACCC) commenced this proceeding against Service Seeking alleging that certain aspects of the company's system for obtaining what were described as customer reviews for service providers involved misleading or deceptive conduct and false or misleading representations, in contravention of certain provisions of the Australian Consumer Law which is found at Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL). The parties have filed a statement of agreed facts (SOAF) and a minute of consent orders to determine the proceeding (in both cases, in original versions and later in amended form). These are my reasons for making orders in the terms sought by the parties.

The Service Seeking website and app 3 The function of the website and app is to connect potential customers who require the services of, for example, a gardener, builder or cleaner, with businesses that offer those services. The website has been operating since 2007 and the app since 2014. It appears that their functionality may have changed over time, but it is agreed between the parties that since around 12 July 2016 until at least 13 May 2019, they worked in the way that I am about to describe. There is no material difference between the functionality of the website and that of the app, so from now on these reasons will refer only to the website, as encompassing both. 4 A business could register on the website by creating a business profile which includes relevant information about the business. Service Seeking charged a fee to businesses for registration. Members of the public could also register, but for free. Registration enabled them to seek a quote through the website for services they required. The potential customer could request the quote from a selected business or from a range of businesses that offered services of that kind in the customer's nominated area. 5 On receiving a request for a quote through the website, Service Seeking would give details to registered businesses that match the customer's criteria. Businesses could then contact the customer directly. 6 There were reviews and star ratings shown on the website for each business, to which the customer could refer when deciding to whom he or she wished to give the job. Potential customers who were not registered could still search the website and view the profiles of registered businesses. Search results displayed a list of matching businesses with the number of reviews and a star rating shown for each one. The user could apply filters to narrow results so as to see, for example, only businesses with five stars or with a minimum number of reviews. There was no impediment to a potential customer contacting the business directly without using the website. 7 Clicking on a listing for a business in the search results would bring up a page showing the business's profile on the website. This contained details for the business. The number of purported reviews for the business and the star rating were shown near the top of the page, directly under the business's name and location. There was an 'about us' section describing the business and below that a section that displayed the purported reviews the business had received. That section appeared under a prominent heading which showed, again, the number of purported reviews in square brackets (e.g. 'REVIEWS (27)'). The parties have agreed, and I accept, that the review numbers and star ratings were displayed prominently on the business's profile. 8 Each review had a star rating, a brief written review, and attribution to the relevant customer and business (e.g. 'Craig from Dianella, WA posted a job for Electricians on 5 December 2017'). The ACCC's claim concerns an aspect of Service Seeking's system for obtaining putative customer reviews, which will be described in more detail below. From now on, I will just use the term 'reviews' as encompassing both reviews that customers posted or at least approved, and purported reviews which, the parties have effectively agreed, were not provided by customers. 9 The parties have agreed that between 14 June 2017 and 31 May 2019, customers listed a total of 685,280 jobs on the website, of which 14,393 requested a quote from a selected business only. They have also agreed other figures showing registration and activity on the website over certain periods between July 2016 and December 2018. In summary, the number of customer accounts grew from 1,148,060 at the start of that time to 1,611,963 at the end of that time. The number of business member accounts grew from 131,577 to 179,802. In the period 12 July 2016 to 21 March 2018 442,153 customers were active, meaning they posted one or more jobs, and 20,687 businesses were active, meaning they posted one or more quotes. For the shorter period from 21 March 2018 to 31 August 2018 those figures were 101,844 active customers and 12, 165active businesses, and from 31 August 2018 to 10 December 2018 there were 68,396 active customers and 11,666active businesses.

The Fast Feedback 'review' system 10 The allegations of misleading conduct and false and misleading representations concern a method of obtaining reviews on the website that was known as 'Fast Feedback'. This was operative from 12 July 2016, and began to be phased out on 29 November 2018 and ceased on 13 May 2019, in a way that will be described below. 11 83,229 reviews were published on the website between 12 July 2016 and 10 December 2018. By 10 December 2018 the total number of reviews that had been published since the inception of the website was 215,671. 12 There were different ways in which a review could be published on a business's profile on the website. One was that after completion of the job, a customer could submit a review and star rating directly through the website. Another was that the business could give Service Seeking the email address of a customer who had obtained the services outside the website. Service Seeking would then email the customer and ask for a review and star rating. If provided, those would be published on the business's profile. 13 The third way a review could come to be published was known as the Fast Feedback feature. This way of publishing reviews operated from around 12 July 2016 until 29 November 2018. On completing a job, a registered business could click on a button labelled 'Get Fast Feedback' on the website. The business was then offered a number of pre-defined options to say that the job was completed 'on time'; 'on budget'; 'to a professional standard'; or 'with good communication'. The business could select one or more of these options. It could also give itself a star rating out of five. 14 Once the business had completed its selections, a review and star rating were generated and sent to the email address provided on registration by the customer for the job. The email contained buttons allowing the customer to select 'I agree' or 'I'll write my own review.' If the customer selected 'I agree' then the review and star rating would be published on the business's profile on the website. If the customer selected 'I'll write my own review', the customer could then write a personalised review and provide a star rating and post that on the website. The Fast Feedback review compiled by the business would not then be published. 15 If the customer had not done either of those things within 72 to 96 hours of receiving the email (that is, select 'I agree' or post his or her own review), or had not otherwise notified Service Seeking that he or she disputed the review, then the review and star rating compiled by the business using the Fast Feedback feature would be posted automatically on the business's profile on the website. This happened whether or not the customer had received or opened the review email. The review would be counted in the number of reviews shown on the business's profile on the website and the star rating would be automatically incorporated in the overall star rating shown on the profile.

The impugned conduct 16 Between 12 July 2016 and 30 November 2018, 21,939 reviews were generated using the Fast Feedback feature and published on the website. This refers to the publication of the automatically generated reviews compiled by businesses, not to reviews where the customer chose the option to write and publish their own review. Of the automatically generated reviews, 17,531, or approximately 80%, were published by default, that is, not because the customer clicked 'I agree'. 17 Between 12 July 2016 and around March 2018, reviews that were compiled using the Fast Feedback feature (not written by the customer) were visible on the profile of the business in the following format: That included both reviews published by default and reviews where the customer had clicked 'I agree'. (It was common ground that in this box in the SOAF the words '[first name of customer]' are inadvertently omitted from the beginning of the second last line - see the two later review formats below.) 18 The ACCC first communicated with Service Seeking by letter dated 9 March 2018, in which the ACCC said that it was investigating concerns about the Fast Feedback feature. From around March 2018 until around August 2018, reviews compiled using the Fast Feedback feature, not having been written by the customer, appeared on each relevant business's profile in the following form: 19 It is clear from evidence of actual Fast Feedback reviews that the reference to 'Following the link' here refers to the text below the link 'Learn more about Fast Feedback here'. There is no evidence as to what a user would encounter if they clicked on that link. 20 That format (and the further one mentioned below) was applied to all Fast Feedback reviews, whenever published. So, for example, if a review was first published in January 2018, in the first format, it remained visible after the change in format in March 2018 but the new format was applied to that review and to all others. 21 From around August 2018 until 13 May 2019, such reviews were visible on each business's profile in the following form: 22 I have mentioned that Fast Feedback reviews began to be phased out from 29 November 2018. After that date, it was no longer possible for businesses to create new reviews using the Fast Feedback feature. From 13 May 2019, all Fast Feedback reviews that had not received the actual approval of the customer were no longer visible on the website. The SOAF says that they were not visible 'at all'. While it is not made explicit, I take this to mean that the reviews that were no longer visible were not counted in the number of reviews shown for the business and the star ratings were no longer included in the overall star rating shown. 23 The parties have agreed as a fact that the Fast Feedback reviews published on the website comprised representations made by Service Seeking on the website that purported to be testimonials by customers who have used the services of businesses on the website and relating to the services of those businesses. For each of the three review formats as set out above for each of the three periods identified, this is said by the parties to have been because, in their terms and in the context in which they appeared, the reviews and star ratings 'purported to have been given by such Customers, but … were created by the businesses themselves through the Fast Feedback feature'. These representations were also made in the period between 30 November 2018 to 13 May 2019 because the reviews remained on the website, even though no new reviews were published using the Fast Feedback mechanism. 24 These agreed facts are clearly borne out in relation to the first format of Fast Feedback reviews which was published until March 2018. Those reviews were expressed in the first person above the name of a customer. That conveyed that the customer had provided the review. It conveyed that by clear implication if not expressly. 25 That is less clear in relation to the second and third formats of the reviews as they appeared on the website between March 2018 until August 2018 and between August 2018 until 13 May 2019 respectively. Reviews in the second format were not expressed in the first person as if they came directly from a customer. In that format, the statement that appears after the words 'Fast Feedback:' is directly attributed to the business. Nevertheless, I consider that the agreed fact that by publishing the reviews, Service Seeking made representations that purported to be testimonials by customers who had used the services of the businesses, is borne out by the terms of the reviews in the second format, considered in the context of the website as a whole. Most obviously, although reviews in the second format do not purport to come directly from a customer, they do purport to be the business's report of the customer's views. The review is given above the name and location of a specific customer. Reasonable users of the website would be likely to read it as conveying the actual views of that customer about the services the business provided, which can be considered to be a testimonial given by the customer. Certain contextual matters were likely to reinforce that impression, namely: (1) the fact that the view attributed to the customer appears after the words 'Fast Feedback', since in the present context 'feedback' must mean feedback on the services, which would ordinarily come from the recipient of the services, that is, the customer; (2) the default reviews in the second format appeared under the prominent heading 'Reviews'- the ordinary meaning of 'review' which is relevant in this context is that it is an evaluation of services which is given by the person who received the services, and connotes that it is given by someone other than the business reviewed; (3) it follows from the previous point, and from common experience, that reasonable users would naturally assume that the point of posting the reviews was to help a potential customer find out what previous customers of a business thought about the business, so as to help the potential customer decide whether to use the business - not to find out what the business thought about itself; (4) the default reviews were mingled with genuine customer reviews; and (5) each default review appeared under a star rating, which reasonable users would generally take to be a rating given by a customer, and would be surprised to learn was a rating that the business gave itself. 26 In relation to the third format set out above, the agreed fact that by publishing the reviews, Service Seeking made representations that purported to be testimonials by customers who had used the services of the businesses is even less clearly borne out. That is because, unlike the first and second formats, Fast Feedback in the third format is not attributed to the customer, either expressly or by clear implication. It is, in form, a report by the business about its own performance. 27 Nevertheless, I accept that by publishing reviews in the third format, Service Seeking did make representations to the effect that each named customer had given a testimonial about the services of the relevant business. The contextual matters I have just mentioned in connection with the second format all applied in relation to the third format reviews. Taken together those matters are likely to make the reader receptive to the impression that what is said after the words 'Fast Feedback' in the third format reviews is the view of the named customer. 28 Another relevant contextual matter is that many of the persons likely to have viewed the Fast Feedback - prospective customers looking for tradespersons or other service providers - are likely to have fallen somewhere between a customer considering a substantial purchase 'in the calm of the showroom' and a person encountering 'an unbidden intrusion on the consciousness' in the form of (say) a television advertisement: see Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [47]. Someone looking for a business to fix a faulty light switch, for example, may well be interested in the content of the reviews, but could be expected to skim many of them rather than read them all closely. 29 In all that context, a statement, for example, that 'Axolotl Electrical reported the job was completed on time, on budget, to a professional standard and with good communication' is liable to convey that those are the views of the customer. The question is whether that misconception is properly to be attributed to ordinary or reasonable members of the class of users of the website: see Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at [105]. Perhaps some reasonable users would read the statement carefully and understand it as only conveying the view of the business about its own performance. But I do not consider that users who did not read the statement carefully and understood it as representing the actual views of actual customers either reacted in an extreme or fanciful way (see Campomar at [105]), or failed to take reasonable care of their own interests (see ACCC v TPG at [39]). 30 The parties have also agreed that these representations as to customer testimonials were not reviews and ratings of services by customers who had used the services of the business, but were instead reviews and ratings created by the business through the Fast Feedback feature and automatically published on the business's profile by Service Seeking through the default publishing mechanism which I have described. This may be accepted in respect of the approximately 80% of Fast Feedback reviews that were published by default and not because the customer clicked 'I Agree'.

Whether the default Fast Feedback reviews contravened the ACL 31 The parties have agreed that the conduct that I have described under the heading 'The impugned conduct' was misleading or deceptive, or involved the making of false representations, for a number of reasons. 32 First, it is said that the conduct had the effect of conveying the false impression that the number of favourable reviews of businesses by customers on the website was higher than was the case, and that the overall star rating which customers gave to businesses was higher than was the case. I accept that to be so. The impugned conduct conveyed a false impression that relevant businesses had received more favourable reviews, actually given by customers, than they in fact had received. It also conveyed that the businesses had been given a higher aggregate star rating by customers than customers had in fact conferred. There is no direct and specific evidence in the SOAF that businesses regularly gave themselves five star ratings and that this led to a higher average star rating than the business would have received had the aggregate rating only been based on actual customer ratings. But that this happened is suggested by a sample page from the website that the parties provided, it is implicit in the agreed facts and the admissions that Service Seeking has made, and in the circumstances it may readily be inferred that this is what occurred in relation to most if not all of the businesses that used the Fast Feedback feature. 33 Second, the parties agree that by making representations constituted by publishing and leaving on the website the Fast Feedback reviews in the various formats set out above, Service Seeking has, in trade or commerce, in connection with the supply or possible supply of services and in connection with the promotion of the supply or use of services, made false or misleading representations that purport to be testimonials by customers who have used the services of businesses on the website relating to the services provided by those businesses. This is said to be a breach of s 29(1)(e) of the ACL. 34 I accept that is so. Section 29(1)(e) relevantly provides: (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: … (e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services … 35 A representation is a statement, which may be conveyed by words or conduct, explicitly or by implication: Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 at [78]. As for 'false or misleading' it has been said that there is no material difference between that and the phrase used in s 18, 'misleading or deceptive': see Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [14]; and Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; (2014) 317 ALR 73 at [40]. On each occasion on which it published Fast Feedback reviews, Service Seeking made a statement, at least by implication, that a real customer had expressed the opinion recorded in the review, and so given a testimonial. The statement was false and misleading. As for the services referred to, here the relevant services are the services of the registered business, not of Service Seeking. But while I was referred to no authority on the point, there is nothing on the face of s 29(1)(e) which requires the services to which the provision refers to be services offered by the person said to have breached the prohibition. 36 Third, the parties have agreed, and Service Seeking has admitted, that by engaging in the conduct Service Seeking has, in trade or commerce, engaged in conduct that is: (1) misleading or deceptive or likely to mislead or deceive, in contravention of s 18 of the ACL; and (2) liable to mislead the public as to the nature, and the characteristics and the suitability for their purpose of services of businesses on the website, in contravention of s 34 of the ACL. These conclusions follow from the first admission for the reasons I have given, and also follow from the effect of the Fast Feedback as published in the first, second and third formats, as I have discussed above. 37 The parties have agreed that the contravening conduct was liable to result in harm in various ways. It deprived registered customers and members of the public who visited the website of an opportunity to accurately compare services provided by those businesses on the website, and select a business on a fully and properly informed basis. It influenced registered customers and others to select a business to provide services to them that they would not otherwise have selected because the business had more reviews, more favourable reviews, and/or a higher star rating than it would otherwise have had. It unfairly disadvantaged businesses whose profiles on the website only contained genuine reviews by registered customers who had used their services. It occasioned similar disadvantage to businesses who were not registered on the website. 38 All these matters may be readily accepted. Precisely how many consumers and businesses were affected in these ways is impossible to say; the parties have agreed that any loss and damage suffered by registered customers or members of the public cannot be quantified, and nor can any loss or damage suffered by businesses. However, given that 17,531 purported reviews were published that were in a way that was false or misleading (see above), and there were numerous registered and active customers and businesses as described above, it may be inferred that the extent of the harm caused to consumers and businesses was significant. 39 For those reasons, I am satisfied that Service Seeking has contravened s 18, s 29(1)(e) and s 34 of the ACL and the court has power to grant appropriate remedies. I will now turn to consider the remedial orders to which both parties consent.

Declarations sought 40 The parties have agreed to declarations of contravention. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [90]-[93] the Full Court summarised the principles to be applied in such circumstances as follows (citations removed): The fact that the parties have agreed that a declaration of contravention should be made does not relieve the Court of the obligation to satisfy itself that the making of the declaration is appropriate. It is not the role of the Court to merely rubber stamp orders that are agreed as between a regulator and a person who has admitted contravening a public statute. The facts necessary to support the declaration may be established by agreed facts (under s 191 of the Evidence Act 1995 (Cth)) and admissions. The Court has a wide discretionary power to make declarations under s 21 of the Federal Court of Australia Act 1976 (Cth). Before making a declaration, the Court should be satisfied that the question is real, not hypothetical or theoretical, that the applicant has a real interest in raising the issue, and that there is a proper contradictor. Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court's disapproval of the contravening conduct, vindicate the regulator's claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions. 41 Those broad principles are not rules that fetter the court's discretion: see Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437. I do not consider that the fact that Service Seeking has admitted the contraventions (indeed, as early as the filing of its concise statement) means that the matter lacks a proper contradictor. In Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 (quoted in Forster v Jododex at 437-438), it was explained that this refers to 'some one presently existing who has a true interest to oppose the declaration' (emphasis added), and see also Australian Competition and Consumer Commission v Sampson [2011] FCA 1165 at [11]-[15] (Tracey J). Service Seeking is a person with such an interest, even though it has chosen not to contest the claims. 42 Here, I am satisfied that the facts supporting the declarations have been established on the evidence comprised of the SOAF, that the declarations describe the contraventions at an appropriate level of specificity, and that there is utility in making them to express the court's disapproval of the conduct. The declarations will be made.

Injunction 43 The parties have agreed to an injunction prohibiting Service Seeking from publishing any review relating to services provided by a business registered on the website without the express written consent of the person who is named as the person providing the review or the person to whom services were provided. The injunction is proposed to run for three years. 44 I am satisfied that it is appropriate to grant an injunction in those terms: cp. Australian Competition and Consumer Commission v STA Travel Pty Ltd [2020] FCA 723 at [61]-[62] (O'Bryan J). The injunction is unambiguously directed to the contravening conduct and will serve the public interest by deterring any repetition of that conduct on the part of Service Seeking. That is important given that the company will, no doubt, continue to publish a large number of customer reviews and star ratings given by customers on its website and customers and others will continue to rely on those reviews and ratings. The court is empowered to grant the injunction whether or not it appears to the court that the respondent intends to engage again, or to continue to engage, in the contravening conduct: ACL s 232(1) and 232(4). The period proposed, three years, sets a suitable end date for the contravening conduct to be specifically prohibited by order of the court.

Pecuniary penalty 45 The parties jointly ask for a pecuniary penalty of $600,000 in respect of the contraventions of s 29(1)(e) and s 34 of the ACL that have been found to have occurred. 46 If the court is satisfied, relevantly, that a person has contravened a provision of Part 3-1 of the ACL, in which s 29 and s 34 are found, the court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each act or omission by the person to which this section applies, as the court determines to be appropriate: ACL s 224(1). The court must proceed on the basis that where conduct that constitutes a breach of two or more relevant provisions, the contravenor is not liable to more than one pecuniary penalty under s 224 in respect of the same conduct: ACL s 224(4)(b). 47 In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (FWBII) at [58], French CJ, Kiefel, Bell, Nettle and Gordon JJ said of civil penalty proceedings: Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. 48 The question is whether the parties' proposal can be accepted as fixing an appropriate amount, and for that purpose the court must satisfy itself that the submitted penalty is appropriate: FWBII at [48]. Because fixing the quantum of a civil penalty is not an exact science, there is a permissible range, and the court will not depart from the figure submitted by the parties merely because it might otherwise have been disposed to select some other figure: FWBII at [47]. 49 There is no scientific approach or arithmetic formula to be applied in determining the appropriate penalty; the circumstances of each contravention need to be looked at, taking into account all the circumstances pertaining to the contravention: Australian Competition and Consumer Commission v Telstra Corporation Ltd [2010] FCA 790; (2010) 188 FCR 238 at [251] (Middleton J), quoted with approval in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [54]. The purpose of a civil penalty is primarily if not wholly protective in promoting the public interest in compliance: FWBII at [55]. It does so by putting a price on contravention that is sufficiently high to deter repetition by the contravenor (specific deterrence) and by others who might be tempted to contravene the Act (general deterrence): Trade Practices Commission v CSR Ltd [1990] FCA 521; (1991) ATPR 41-076 at [40] (French J). It must be set with a view to ensuring that the penalty will not be seen by the contravenor or others as an acceptable cost of doing business: Singtel Optus at [62].

Number of contraventions and course of conduct 50 Questions concerning a potentially large number of contraventions arise not infrequently in cases concerning civil penalties for conduct in breach of Part 3-1 of the ACL, and they arise here. Each instance of the publication of a misleading Fast Feedback review can be characterised as a contravening act. Under s 224(3), for acts or omissions that occur before 1 September 2018, the maximum penalty was $1.1 million for each such act or omission. For acts or omissions occurring on or after that date, the maximum penalty increased to the greater of $10 million or the results of formulae based on the value of the benefit gained by the contravening company or the turnover of the company. If each of the 17,531 misleading Fast Feedback reviews is treated as a contravention, and those maxima are treated as arising in the case of each contravention, then the total maximum penalty would run into many billions of dollars. In fact, it may be a multiple of that, because it is open to say that a contravention occurred each time the profile of a business that contained a misleading review was viewed by a user of the website: see Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [12]. So the assessment of the appropriate range for penalty in the circumstances of this case is best assessed by reference to factors other than the maximum penalties: see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [157]. 51 The question of whether the contraventions should be characterised as a course of conduct for the purposes of the court's discretion in determining the pecuniary penalty also needs to be considered. In Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 at [39], Middleton and Gordon JJ explained the principle as follows (original emphasis): … a 'course of conduct' or the 'one transaction principle' is not a concept peculiar to the industrial context. It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is 'the same criminality' and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. 52 And at [41]-[42] (original emphasis): … the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion: Johnson v R (2004) 205 ALR 346; [2004] HCA 15 at [3]-[4] and [34] and Attorney-General v Tichy (1982) 30 SASR 84 at 92-3 (Tichy). It is a tool of analysis (Tichy at 93) which a court is not compelled to utilise: Royer v Western Australia [2009] WASCA 139 at [21]-[34] and [153]-[156] (Royer). A court is not compelled to utilise the principle because, as Owen JA said in Royer at [28], '[d]iscretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks'. The exercise of the sentencing discretion does not fall to be exercised in a vacuum. It is a matter of judgment to be exercised according to the facts of each case and having regard to conflicting sentencing objectives: see McHugh J in AB v R (1999) 198 CLR 111; 165 ALR 298; [1999] HCA 46 at [14]. For the same reasons, and contrary to the appellants' submissions, even if offences are properly characterised as arising from the one transaction or a single course of conduct, a judge is not obliged to apply concurrent terms if the resulting effective term fails to reflect the degree of criminality involved. Or, in the case of fines, a judge is not obliged to start from the premise that if there is a single course of conduct, the maximum fine is, in the present case, $110,000 for the CFMEU and $22,000 in the case of Mr Mates. While these principles were expressed in terms of sentencing for criminal offences, CFMEU v Cahill was itself a civil penalty proceeding. 53 The parties submit that the Fast Feedback system described above which resulted in the publication of numerous reviews falsely attributed to customers can be characterised as one course of conduct. I agree that it can be characterised that way, and consider that it should be. The reasons of Middleton and Gordon JJ in CFMEU v Cahill confirm that the underlying principle is the need to avoid punishing the contravening party twice for what is 'essentially the same criminality', which requires a factually specific enquiry into what precisely is the same criminality. 54 In my view, the essence of Service Seeking's contravening conduct was to set up, implement and maintain a system which, when used by businesses - and not used by customers - inevitably led to the publication of numerous misleading reviews. The parties submit, and I accept, that Service Seeking set up this system in order to enable businesses to increase reviews of themselves on the website and so to increase the appeal of the website to customers and businesses. I would go further and infer that part of the purpose was to increase the number of positive reviews, and high star ratings, and also to increase the total number of reviews shown which would tend to increase the trust the customers felt in the ratings. All of this would increase the attractiveness of the use of the website to both businesses and customers. I will assess the contraventions on the basis that they constitute a single course of conduct.

Factors to be taken into account 55 Section 224(2) of the ACL requires the court, in determining the appropriate pecuniary penalty, to have regard to all relevant matters including: (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct. 56 Other matters that are usually relevant to determining whether a pecuniary penalty is appropriate are: (1) The size of the contravening company. (2) The deliberateness of the contravention and the period over which it extended. (3) Whether the contravention arose out of the conduct of senior management of the contravenor or at some lower level. (4) Whether the contravener has a corporate culture conducive to compliance with the ACL as evidenced by educational programmes and disciplinary or other corrective measures in response to an acknowledged contravention. (5) Whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act in relation to the contravention. (6) Whether the contravener has engaged in similar conduct in the past. (7) The financial position of the contravener. (8) Whether the contravening conduct was systematic, deliberate or covert. Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; (2011) 282 ALR 246 at 250 at [11] (Perram J). These factors do not necessarily exhaust potentially relevant considerations; nor do they regiment the discretionary sentencing function: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 at [9] (Allsop CJ). Ultimately what is required is an intuitive or instinctive synthesis of all relevant factors: ACCC v Coles at [6].

Nature and extent of the act and of loss or damage and circumstances in which the act took place 57 Turning to the factors which are specifically identified as mandatory under s 224(2), the nature of the conduct is serious. It was the deliberate construction of a system which, as I have said, would inevitably result in the publication, by Service Seeking, of numerous misleading reviews. Those at Service Seeking who were responsible for the design, implementation and maintenance of that system must have known that would be the result. It is a matter of common knowledge that emails are not always opened, or if they are, are not always replied to or otherwise dealt with, and that many people presented with automatically generated choices of the kind produced by the Fast Feedback system would ignore or delete the email. It must have been obvious that the result of this would be that numerous reviews falsely attributed to individuals would be published. That is in circumstances where the parties have agreed as a fact that reviews are an important factor in a customer's choice of which business to hire. Common experience suggests that being able to read reviews thought to have been posted by or obtained from other customers is one of the main reasons, if not the main reason, why a potential customer will use a website like Service Seeking's to find businesses. 58 As to the extent of the act (conceived of as a single course of conduct), hundreds of thousands of users of the website during the relevant period were potentially affected by the conduct; how many made decisions to use (or not use) the services of given businesses that were affected by the conduct is impossible to know. While none of this can be quantified with precision, its extent was significant. 59 Initially the conduct occurred over a period of 21 months (in terms of the first version of the Fast Feedback reviews). Then, following complaints in the media, the ACCC wrote to Service Seeking raising concerns. While Service Seeking made changes to the format of the reviews, it did not remove the system. For the reasons I have given, the changes did not remove the misleading, deceptive and false characteristics of the Fast Feedback reviews that were published by default. 60 The parties submit, and I accept, that it is not possible to quantify the loss or damage suffered as a result of Service Seeking's conduct. I accept, however, that the harm done was as is agreed by the parties (set out at [37] above). There was also wider harm in the potential undermining of confidence in web-facilitated commerce where trust in relevant systems is important. So the extent of loss or damage caused by the contravening conduct must also be assessed as significant. 61 As I have said, the purpose of this was to increase the attractiveness of the site to businesses and customers. Service Seeking was aware of this; it made a statement on the website, presumably visible to businesses, that the Fast Feedback system would be a way to 'gain the trust of customers and win more jobs on the site'. 62 The matters I have set out to this point also describe my findings as to the second specific factor made mandatory under s 224(2), the circumstances in which the act or omission took place.

Previous contravening or similar conduct 63 As to the third mandatory factor, whether Service Seeking has previously been found by a court in relevant proceedings to have engaged in any similar conduct, it has not. Nor have its joint chief executive officers, Oliver Pennington and Jeremy Levitt. That also deals with the sixth commonly relevant factor identified in ACCC v Singtel Optus Pty Ltd (No 4) (see [56] above). I will now address the other factors in that list, albeit not in the precise order presented by Perram J in that case.

The size and financial position of the contravenor 64 Service Seeking was established in October 2007. Over the relevant period it had between four and 14 employees in Australia, but it also had a wholly owned subsidiary, Service Seeking Manila, with between 58 and 80 employees in the Philippines. Service Seeking's annual revenue over the period was substantial, running to several millions of dollars, as was the net asset position displayed in its financial statements. Unaudited management accounts for the financial year 1 July 2018 to 30 June 2019 show a profit of $594,895. 65 I am satisfied in view of this that the proposed penalty of $600,000 is reasonably commensurate and proportionate to Service Seeking's ability to pay, so that it is within the range of appropriate penalties that would be higher than 'an acceptable cost of doing business', without being crushingly large.

The deliberateness of the contravention, the period over which it extended and whether it was systematic or covert 66 I have already addressed most of these matters. The conduct was clearly systematic. Given what I have said about Service Seeking's knowledge of the inevitable result of the system it devised and implemented, I am satisfied that its conduct should be described as deliberate. 67 It is not clear the extent to which the effect of the Fast Feedback System would have been apparent to businesses using it. Conceivably those businesses or customers who received the Fast Feedback emails could, with effort, have investigated and discovered that reviews pertaining to them were falsely attributed. So it may be going too far to say that the contraventions were covert. But it is safe to infer that the nature and operation of the system would not have been apparent to a very large proportion of customers and potential customers using the website. That is, of course, inherent in the conclusion that the conduct was misleading, deceptive and false.

Whether the contraventions arose out of the conduct of senior management or at some lower level 68 Service Seeking has admitted that its senior management 'knew of and approved the development and implementation of the Fast Feedback feature and provided feedback to Service Seeking's technical and marketing personnel in relation to the manner in which the Fast Feedback feature should operate'. It is not clear why this is so carefully worded, but in any event the parties jointly submit, and I find, that the contraventions arose out of the conduct of senior management.

Corporate culture, compliance programmes and corrective measures 69 The parties submit that Service Seeking did not have a corporate culture conducive to compliance with the ACL. In the absence of evidence to the contrary, and in view of the systematic nature of the contravening conduct and the involvement of senior management in it, I accept that submission. Service Seeking has never had a compliance programme relevant to its obligations under the ACL.

Cooperation with the ACCC 70 Service Seeking cooperated with the ACCC during its investigations by providing information and documents on a voluntary basis. It has also cooperated with the ACCC since the proceedings were commenced, by admitting the contraventions swiftly, in its Concise Response (filed on 13 March 2019), and agreeing the facts and making the admissions contained in the SOAF at an early stage of the proceedings. Service Seeking's cooperation with the ACCC has saved the ACCC and the court the cost and burden of full litigation of these proceedings. All this mitigates the penalty that should be imposed. 71 As the above account of the facts shows, Service Seeking did engage with the ACCC after it raised concerns and did amend the format of the Fast Feedback reviews. But the corrective measures taken by Service Seeking in response to the ACCC's expressed concerns in respect of the first format of the Fast Feedback reviews were limited to insufficient amendments to the standard wording in which Fast Feedback reviews appeared. Even after the proceedings were commenced and Service Seeking had admitted, by its concise response, that the publication of the Fast Feedback reviews by default constituted contraventions of the ACL, Service Seeking did not remove those Fast Feedback reviews until May 2019.

Conclusion on penalty 72 The parties submit that having regard to a range of matters, the appropriate penalty would be $800,000, but that this should be discounted to $600,000 to reflect Service Seeking's cooperation with the ACCC. 73 Taking all the factors I have set out above into account, I accept that a penalty of $600,000 is within the range of appropriate penalties. Service Seeking engaged in a systematic course of conduct for the self-interested purpose of increasing the attractiveness of its website to businesses and customers in a manner which it must have known would give rise to numerous instances of misleading conduct. This was an abuse of the trust that customers can be inferred to have placed in the site, the existence of which can be inferred from the number of active customers who posted one or more jobs. Its conduct was serious. But I accept that its cooperation with the ACCC has been real, and was proffered relatively early, so as to result in a substantial saving of public resources. 74 The level of the penalty also has to be assessed against the company's size and financial position; it is and was more than a small business, but by the same token not a major public company. The penalty exceeds its entire unaudited annual profit figure for the year ending 30 June 2019. 75 The penalty must also be assessed in light of the importance of general deterrence. I am satisfied that in the circumstances, a penalty of $600,000 indicates appropriately that a serious contravention of the ACL will attract serious consequences, but also that real and early cooperation with the regulator will bring benefits.

Corrective publication 76 The parties have consented to an order that Service Seeking publish a corrective notice on its website. The terms of the notice appropriately reflect the nature of the contravening conduct. Now, some 14 months after all the Fast Feedback reviews that were not approved by the relevant customer have been taken down, the contravening conduct is not likely to have any ongoing effect which the corrective notice will remedy. Nevertheless, it is appropriate that the notice be published to make clear to customers and others the fact that Service Seeking has contravened the ACL.

Compliance program 77 The parties have agreed to an order that Service Seeking, at its own expense, establish and implement a compliance program. The terms and content of such program are to be agreed between the ACCC and Service Seeking or, failing agreement, to be set by the court. Given the lack of any previous such programs or a culture of compliance within Service Seeking, it is appropriate that this order be made.

Costs 78 The parties have agreed to an order that Service Seeking pay the ACCC's costs to be fixed in the sum of $40,000. That amount is appropriate and an order to that effect will be made.

Conclusion 79 Orders will be made in the terms set out at the beginning of these reasons. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jackson.