Most of us can name the large businesses that have recently suffered very public (and costly!) data breaches. Data breaches and cyber security are, however, just one element of Privacy Law that you must be across. 

At the end of 2022, the Australian Parliament passed key reforms to privacy legislation which not only give the regulator larger powers of investigation, but which significantly increase the penalties for breaches of privacy regulations.  

The new penalties are massive – the greater of $50M, three times the benefit of the contravention or 30% of domestic turnover. Wow.  

What does this mean for retailers? It means you must make data security and privacy compliance a key business risk and focus for 2023. You and your employees need a clear picture of how data is collected, stored and used in your business across the various data streams. You must have up-to-date privacy policies, internal protocols and training for staff on managing privacy compliance. Your IT security and protective regimes must be gold standard. Privacy and digital security compliance impacts almost every area of your business – stores, marketing, IT security, customer service and insurance.  One weak link can be costly – not to mention the media and PR risk. If there is one thing you want an A+ mark for this year, it’s privacy compliance. 

A broad topic, but there have been some reoccurring IP issues in 2022 which will no doubt continue to arise in 2023. 

The protection regime for creative design in Australia is lack lustre. While there is not a lot for small creatives to do legally when a big retailer “rips off” their designs, the PR risk for retailers who are seen to steal ideas from smaller players is immense. We encourage all retailers to have internal training and policies for new concepts, prints, designs, slogans, product names, etc. to ensure any ‘inspiration’ doesn’t go too far.  

Further, ensuring you protect key product names, phrases and logos with a trademark is essential – as is conducting searches before using these in the market.  Lastly, when you engage developers, designers and contractors, make sure your contracts contain IP ownership and assignment clauses.  

There have been some pretty dodgy advertising claims made by large retailers in the past year – some so crazy it’s hard to imagine how they snuck past the keeper.  While the wild claims are (hopefully) easy to avoid with a bit of common sense, all retailers need to be mindful of how they advertise their goods and services.  

The things we suggest clients focus on this year to avoid penalty are: 

False discounting and price establishment – ensure savings claims are substantiated with an appropriate “price establishment” policy. If you don’t know what this means and you offer “Save X%” or other discounts/sales, please contact us asap.  

Greenwashing and health benefit claims – consumers are more alive to greenwashing and flimsy health claims than ever before.  If you are marketing ‘healthy’ or ‘green’ products or claiming vegan, organic, toxin-reducing, environmentally friendly, anti-inflammatory (the list goes on) elements, you best have some strategy and proof behind those claims. Even one little word is enough to bring the best unstuck.  

Social media and influencer marketing – there are strict rules for the use of influencers and social media promotion. This includes where products are ‘gifted’. If you don’t have a policy or understand how to engage with talent online, this is a risk for both you and the influencer involved – particularly with sponsored posts that are not appropriately labelled as such.  

Comparative advertising – be careful making any comparisons against competing products and services without proper basis and justification

Everyone’s favourite topic. Now that the Covid-related lease protections have ended, many landlords are getting heavy on rental arrears and breaches and seeking to increase rents on expired leases. Lease disputes are on the increase. Hot topics continue to be making good compliance, eviction for unpaid rents, landlords refusing assignments, contribution clawbacks and refurbishment disagreements. Please, please have your leases reviewed and negotiated by a leasing expert before you sign! 

Employment law compliance and, in particular, payroll and wages continues to be a huge risk area for retailers who have to juggle the various awards, enterprise agreements and other legislative requirements.  

Other areas which need some awareness in 2023 are pay secrecy bans, limitation on fixed and maximum term contracts, family and domestic violence leave, multi employer bargaining and the positive duty for employers to prevent sexual harassment under the Respect@Work regime.  

For those retailers who operate franchised networks, there were some key changes to the Franchising Code of Conduct in 2022 which you should be aware of. In addition, there is a number of new disclosure requirements including the uploading of certain mandatory information on the Franchise Disclosure Register.