Comité Interprofessionnel du Vin de Champagne Rachel Jayne Powell
Justice Beach of the Federal Court of Australia has found that Rachel Jayne Powell engaged in misleading and deceptive conduct by promoting sparkling wines on social media while using the name "Champagne Jayne" and by holding herself out to be an ambassador of the Champagne industry. The decision sets the "wine bar" low for proving misleading and deceptive conduct on social media.
What was misleading about Champagne Jayne?
Powell is a Sydney-based wine educator and entertainer who conducts her business under the name "Champagne Jayne".
She used her pseudonym to promote sparkling wines, but at times did not distinguish sufficiently between sparkling wines and Champagne wines. This conduct included posting content containing sparkling wines such as images and videos on Twitter, Facebook, Instagram and YouTube under the name Champagne Jayne.
The Comité Interprofessionnel du Vin de Champagne (CIVC), the French statutory corporation which represents the Champagne industry, alleged that this conduct misled and deceived consumers into thinking that sparkling wines are the same as Champagne wines.
In Australia, since 2011, use of the term "Champagne" is restricted to wines produced in the Champagne region of France which comply with the relevant standards for production. Whereas "sparkling wine" is the generic term for wines of that style that are produced elsewhere and are not held to any standards for production.
The CIVC also complained that, by using the name Champagne Jayne, Powell represented that she had an affiliation with the CIVC, which she did not.
Who was misled?
The Judge found that a not insignificant number of Australian consumers believe that the term "Champagne" refers to either sparkling wines or Champagne wines, or are unclear one way or the other. According to the Judge, Powell's conduct was a perpetuation of these pre-existing mistaken views and was misleading and deceptive.
The Judge noted that Powell's conduct occurred in a context where she referred to her connections with producers of Champagne and used the "glamour, Frenchness and accoutrements" associated with Champagne wines and the name Champagne.
The Judge dismissed the CIVC's claim that Powell represented she had an affiliation with the CIVC. However, he found that she had engaged in misleading and deceptive conduct by calling herself a "Global Champagne Ambassador". By adopting this title she had represented that she had some official status with the Champagne industry, which she did not.
Nature of social media: "Tweeting is fleeting"
Powell put forward several arguments as to why her social media posts should not be considered misleading or deceptive.
- First, she argued that her Champagne Jayne social media posts could not constitute conduct which would infringe s 18 of the Australian Consumer Law as they were so fleeting in nature that they did not rise to the level required to mislead. The Judge held that, while a tweet may be fleeting, its effect or influence on a reader may be more enduring. The repetition over an extended time frame of similar types of communications may demonstrate a pattern of more enduring and potentially infringing conduct. Notwithstanding the fleeting nature of a tweet, the ghost of that post remains and can be accessed at a later stage.
- Secondly, she argued that there was no evidence that the relevant class of consumers read the posts. The Judge dismissed this argument as containing "an air of unreality". He stated that "one could assume from the mode of communication that it was intended to be read and was read by a significant number of such a class", and further that Powell used and deployed social media in trade or commerce and that it was an integral aspect of her business activities.
- Thirdly, she argued that social media users were not necessarily acting as consumers when they read social media posts. This argument was also rejected.
- Finally, she argued that only a small number of offending posts had been identified by the CIVC. The Judge dismissed this argument in the context of a finding on the nature of her conduct but noted that it would be relevant to the question of relief.
Is wine education and promotion "advertising for sale"?
The CIVC also alleged that Powell had contravened the Australian Grape and Wine Authority Act 2013 (Cth) (Act). The CIVC argued that she had contravened ss 40C and 40E of the Act by promoting sparkling wines as a part of her Champagne Jayne business. Sections 40C and 40E of the Act provide that a person commits an offence if they "sell" wine with a false or misleading description. "Sell" is defined in the Act to mean "offer, expose or advertise for sale".
The Judge found that the words "for sale" were of importance. The phrase "advertise for sale" requires that the person advertises the wine for the purpose of selling the wine as the Act was intended to apply to those trading in wine, not to wine educators. As she did not "sell" sparkling wines, Powell did not contravene the Act.
What was the damage?
The CIVC abandoned its claim for damages during the course of the proceeding. It would be difficult for the CIVC to identify and prove the damage caused by Powell's conduct. While the arguments about the nature of social media were dismissed in the context of proving the contravention of s 18 of the Australian Consumer Law, it is likely that those same arguments would be relevant to the question of damages.
What relief was granted?
Final orders have not yet been made in the proceeding. However, the Judge stated that the CIVC had not proven it was entitled to the relief it originally sought, which included wide ranging injunctions and cancellation of several "Champagne Jayne" registrations.
It appears that any relief granted will be limited to declarations and narrow injunctions against Powell. This is likely to mean that Powell will be able to use the Champagne Jayne name but that she will be restricted in the way she refers to or promotes sparkling wines.
Private persona vs business name
Powell's case highlights the blurred line between private personas and business names, a particular challenge in the modern media age and the cult of personality. Be mindful when posting on social media when your personality has become your business as it may bring you within the jurisdiction of the Australian Consumer Law. You should also be cautious that, in adopting a clever moniker like Champagne Jayne, you are not opening yourself up to the same kinds of allegations of affiliation, or trading on a pre-existing reputation.
Champagne Jayne serves as a warning to small businesses which take advantage of social media as an advertising and promotional tool. When using social media small businesses should make sure to have a business account separate from other personal accounts and should be cautious about the content of any posts generated by that business account.
Key lessons for brand owners concerning social media
- Exercise caution when posting on social media, particularly when your personality becomes your business.
- It may be difficult and expensive for brand owners to prove the damage caused by misleading social media posts, but targeted injunctive relief is likely to be granted.
- The French take their wine very seriously.