What's a valid false advertising case and how does it get pursued?

Question

There's a company who helps people rent apartments. You go to their site, search, a map appears with markers at specific locations. You see a location you like. Maybe it's on a beach. Maybe it's on a river. Maybe's it's on a famous boulevard. Maybe it's on a quiet street.

You rent the place. A few days before you arrive you get instructions. Those instructions don't lead to the location that was marked on the map they lead somewhere else a 1/2 a kilometer away.

Bringing it up with the company you're told it's the company policy that the locations shown may not be accurate. Buried in the their privacy policy:

The Platform may also display the Accommodation's approximate geographic location on a map, such that a user can see the general area of the Accommodation

Note this privacy policy is directed at hosts, not the guests. The full paragraph

Your public Listing page will always include some minimum information such as the city and neighborhood where the Accommodation is located, your listing description, your calendar availability, your public profile photo, your responsiveness in replying to Guests’ queries, and any additional information you share with other Members. Your public Listing page may also include aggregated demand information (such as number of page views over a period of time). Parts of your public Listing page may be displayed in other parts of the Platform to other Members and/or Third Party platforms for marketing purposes. The Platform may also display the Accommodation’s approximate geographic location on a map, such that a user can see the general area of the Accommodation.

This is the sum total if information claimed to make it clear to prospective guests that locations shown when searching for apartments may not be accurate.

So I have 2 main questions

1. Is this a case of false advertising and misrepresentation?

   Looking around the net in general it seem like it is. Hiding behind fine print does not appear to be a valid an excuse for basically making it appear that you're renting at a specific location.

2. If it is a valid case of false advertising and misrepresentation how does it get prosecuted?

   In other words is there an incentive for some lawyer to pursue such a case or is the best that happens is the company in question refunds the money spent on the accommodation, making it not worth a lawyer's time, and the company is free to continue their false advertising and misrepresentation.

   Does the practice have to be common? In other words let's say only 1% of accommodations have a false location. Does it matter given their official policy is that the locations can be false or do they need lots of complaints before it matters?

Answer 1

You can look into the false advertising laws of your favorite location: here are mine, for Washington. The core of the law is that you may not in an advertisement for the purpose of making a sale make "any assertion, representation or statement of fact which is untrue". The jury will decide if that happened. Essentially, a map dot is not a claim with a truth value, so a map dot can't be false, but it can suggest a claim. A jury might then find that the implicit claim was unavoidable, but they might also find that the customer bears responsibility for supplying the claim, such as that a dot on a map means "exactly at this spot". While it is not unreasonable to think that there's some relationship between map dots and things in the real world, it is also well-known that map dots can be shockingly off target, for numerous technical reasons. Because map dots are known unreliable technology, the customer has a duty to pursue more specific information about location. In assessing what claim the company made, they would consider whether there were disclaimers that a customer ignored. "Fine print" is never an excuse for ignoring terms in a document, but non-findability could be. Coupled with a disclaimer of the type you quote, the company would argue that they are not responsible for false claims mentally constructed by a customer. If this is a B&B, the customer should especially know that a responsible company is not going to freely give out detailed information about the location to just anybody.

Another aspect of false advertising law is that the claim has to be made in bad faith, that is, with the intent to trick customers. Mistakes happen, so e.g. if their agent is at the location and uses their cell phone to get GPS coordinates, but the coordinates are simply way off, then that is not deception. A company has a duty to be reasonably careful, but they don't have a duty to be infallible. There are two legal reasons why a company would not be held accountable for mistakes. First, they would argue from the linguistic structure of the statute that there has to be an intent to make a false statement, and second, they would argue that legislative intent could not have been to penalize a company for making a mistake in its advertising.

Answer 2

You have it named a jurisdiction.

In Australia it is unlawful to make a statement which is "false or misleading". From the whole context it is not false, however, it is quite likely misleading. The standard here is what a reasonable person would believe on the face of the statement - burying stuff in fine print does not change this. Intention is irrelevant, if a reasonable person would be deceived it doesn't matter a) if there was an intent to deceive or b) it was technically true - a true statement can still be misleading.

It is worth noting that the USA has a greater "buyer beware" culture and law than Australia and US companies often get caught. See ACCC v. Valve.