The ACCC's position on AI and consumer law

The Australian Competition and Consumer Commission has been explicit: the Australian Consumer Law applies fully to AI-driven business practices. The fact that a misleading representation was generated by an AI tool, that a pricing decision was made by an algorithm, or that a dark pattern was implemented by an automated system does not affect the legal analysis. The conduct either contravenes the ACL or it doesn't — the technology is irrelevant to that determination.

This position, articulated across ACCC communications, market studies, and enforcement activity, reflects the ACL's technology-neutral drafting. The prohibition on misleading and deceptive conduct in section 18 of the Australian Consumer Law applies to conduct 'in trade or commerce'. AI is how trade or commerce is increasingly conducted. It is, straightforwardly, covered.

Where AI creates specific ACL risk for Australian businesses

AI-generated content and representations: If an AI tool generates content for your business — product descriptions, customer communications, advertising copy, comparison information — that content must not be misleading or deceptive. AI hallucination risk is directly relevant here: a product description that contains inaccurate specifications, or a customer service response that misrepresents your returns policy, creates ACL liability for your business regardless of how it was generated.

Dynamic pricing and price discrimination: AI-driven dynamic pricing that produces systematically different prices for customers based on inferred characteristics — postcode-based income proxies, browsing behaviour patterns that correlate with demographic characteristics — may breach the ACL's provisions on unconscionable conduct and misleading conduct. The ACCC has pursued cases involving pricing practices that disadvantaged identifiable consumer groups, and the extension of this enforcement interest to algorithmic pricing is clearly signalled.

AI chatbots and virtual assistants: Chatbots that make product claims, provide pricing information, or describe customer rights are making representations on behalf of the business. False or misleading statements made by a chatbot are the legal responsibility of the business operating it. The ACCC has made clear that consumer protection law applies to automated customer interactions.

Dark patterns: The ACCC has identified manipulative design patterns — countdown timers showing false scarcity, pre-checked subscription boxes, confusing cancellation flows — as priority enforcement areas. AI-driven personalisation of these patterns, where dark patterns are deployed more aggressively for customers identified as more susceptible, compounds the ACL risk significantly.

ACCC enforcement history and direction

The ACCC's Digital Platform Inquiry (2019) and subsequent market studies into digital advertising and app ecosystems have developed the ACCC's analytical framework for technology-enabled consumer harm. The current ACCC Chairman has explicitly identified algorithmic systems and AI as areas of priority focus. The ACCC has demonstrated willingness to pursue major cases — the proceedings against Google, Meta, and various digital platform practices demonstrate enforcement capacity and intent.

Australian businesses that use AI in customer-facing contexts should not assume ACL risk is theoretical. Practical steps: review AI-generated customer communications for accuracy; assess dynamic pricing AI for discriminatory outcomes; review AI-powered customer service tools for compliance with ACL disclosure requirements; and document your compliance assessment, because good-faith and documented compliance processes are relevant to enforcement outcomes even where breaches have occurred.