Online Marketplace Lawyers Adelaide: Platform Terms, Seller Agreements, Reviews and Consumer Law
Online marketplace and platform terms in South Australia
An online marketplace usually runs on two contracts, one with the people who buy or book and one with the businesses that sell, and the Australian Consumer Law reaches the platform’s own pages as well as its sellers’ listings. Talon Legal drafts and reviews marketplace, booking, comparison and directory platform terms, and seller agreements, for Adelaide platforms and the businesses that list on them. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Online marketplace key facts
| Issue | Position in South Australia |
|---|---|
| Two contracts | Buyer or user terms, and a seller agreement. The sale is usually between buyer and seller. |
| Consumer guarantees | Owed by whoever supplies the goods or services to a consumer (ACL sections 54 to 56 and 60), despite a foreign governing law clause (section 67). |
| Rankings and labels | The Federal Court found a comparison platform's top-position display misleading as to which offer was cheapest (ACCC v Trivago at [219], [222]). |
| Reviews | False or misleading testimonials are prohibited (section 29(1)(e) and (f)). Keeping complainants out of review invitations was likely to mislead (ACCC v Meriton at [213]). |
| User posts | Facilitating and encouraging third-party comments on a public page made its owners publishers of them (Fairfax Media v Voller at [55]). |
| Seller terms | Unfair terms in standard form small business contracts are void, and proposing or relying on them is a contravention (section 23). |
| Maximum penalty | Section 29 or an unfair term: for a body corporate, the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover. Others: $2,500,000 (section 224). |
| Prices | A part price needs a prominent single total price for consumer goods and services (section 48(1)). From 1 July 2027, booking fees and other transaction based charges must be shown with each base price (new section 48A). |
| Design from 1 July 2027 | Unfair trading practices are banned; the examples include interface design that puts consumers under unreasonable pressure (new section 28B). |
| Platform data | A business that discloses personal information for a benefit is not a small business operator (Privacy Act section 6D(4)(c)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need an online marketplace lawyer in Adelaide?
Our online marketplace lawyers in Adelaide act for marketplaces, booking and comparison platforms, online directories and deal platforms, and for sellers listing on them. We draft marketplace terms and conditions, seller agreements, review policies and platform privacy policies. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), governs what platforms and sellers tell consumers, and how standard form terms may treat small business sellers. This page states the law current to 7 November 2026.
This guide is part of our online business and e-commerce practice. Related guides cover online sales terms and consumer law, app terms and conditions and software and SaaS agreements.
Free Consultation. Send us your platform terms and seller agreement before launch or before the next change. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- Which contracts does an online marketplace need?
- Who owes the consumer guarantees?
- How can a platform rank and label offers?
- What are the rules for reviews and ratings?
- Is a platform liable for what users post?
- Can seller terms be unfair?
- How must booking and service fees be shown?
- What will the unfair trading practices ban change?
- Who can use buyer and seller data?
- How similar matters tend to play out
- How we act on marketplace and platform terms
- Case law
- Frequently asked questions
Which contracts does an online marketplace need?
Two at least, and they must fit together. The buyer or user terms cover accounts, payments, reviews and posts, and the platform’s own role. The seller agreement covers listings, fees, payouts, content standards, the seller’s terms of sale, data, suspension and termination. Booking platform terms and online directory terms follow the same split.
Both documents should say who sells to the buyer. On many marketplaces an accepted order is a contract between buyer and seller, and the platform is not a party. On others the platform buys and resells. That choice decides who answers for the guarantees and refunds. An online marketplace lawyer reads the terms with the screens buyers and sellers actually see.
Under South Australian law, a transaction, including a contract, offer or acceptance, is not invalid because it took place wholly or partly by electronic communications (Electronic Communications Act 2000 (SA) sections 5 and 7(1)). Show the terms, and record acceptance, before the first order or listing; the website terms of use guide covers online acceptance.
Who owes the consumer guarantees?
Whoever supplies the goods or services to the consumer, and that can include the platform. Supply includes selling, leasing or hiring goods, and providing, granting or conferring services (ACL section 2(1)). A seller that sells through the platform owes the guarantees of acceptable quality, fitness for a disclosed purpose and correspondence with description (sections 54 to 56). A platform that charges buyers a fee for its own booking service supplies services, which must be rendered with due care and skill (section 60). A platform that buys and resells stock supplies the goods.
A term purporting to exclude, restrict or modify the guarantees is void to that extent (section 64(1)). A foreign governing law clause does not displace them where Australian law would otherwise govern (section 67).
The platform also answers for its own representations, such as a “verified seller” badge or a buyer guarantee. False or misleading representations about the approval or benefits of services, or about a guarantee, right or remedy, are prohibited (section 29(1)(g) and (m)). Terms saying all payments are non-refundable misstate consumers’ rights if they can be read as covering failures the guarantees reach.
How can a platform rank and label offers?
Only in a way that matches what the display conveys. In ACCC v Trivago N.V. [2020] FCA 16, the ACCC alleged that an accommodation comparison platform represented that its top-position offer was the cheapest, or otherwise the most attractive ([212]). Moshinsky J said the online context and formatting, including fonts and colours, must be considered. The top offer was in green, in a relatively large font, with a green “View Deal” button, and the overall impression was that it was the best offer ([213]). Hover-over text did not dispel it. Consumers may not hover, and the text did not clearly disclose the role of the cost-per-click payment in choosing the top offer ([216]).
Moshinsky J found misleading or deceptive conduct (section 18). Often the top offer was not the cheapest, and offers were not shown at all unless the booking site’s bid passed a minimum ([219]). Higher priced offers took the top position in 66.8% of listings ([220]), and the cost-per-click payment was a very significant factor ([221]). There were also false or misleading representations about price (section 29(1)(i); [222]).
So if paid placement or commission affects ranking, say so plainly where the consumer decides, not behind a hover icon. “Best deal” and “lowest price” labels must be true. A directory that shows only paying businesses should say so.
What are the rules for reviews and ratings?
Reviews must be genuine, and the way they are collected and shown must not mislead. A false or misleading representation that purports to be a testimonial, or concerning one, is prohibited (ACL section 29(1)(e) and (f)), and a fake review is likely to be one. In a proceeding it is taken to be misleading unless evidence is adduced to the contrary (section 29(2)), though that evidence does not by itself make it not misleading (section 29(3)).
Curating real reviews can mislead too. In ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305, a serviced apartment business masked the email addresses of guests who had complained, so they were not invited to review it on a travel site. Moshinsky J held this was likely to mislead or deceive (section 18; [213]) and liable to mislead the public about its services (section 34; [216]).
A review policy should say who can review, how invitations go out, whether incentives are allowed and disclosed, and when reviews come down, with one rule for good and bad reviews. The seller agreement should ban fake or bought reviews and allow removal and suspension.
Is a platform liable for what users post?
It can be. In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, media companies that ran public Facebook pages were publishers of third-party comments on them. Kiefel CJ, Keane and Gleeson JJ said facilitating, encouraging and thereby assisting the comments made them publishers ([55]), and Gageler and Gordon JJ reached the same conclusion ([105]). A platform that invites reviews and forum posts may be in a similar position.
Under the Defamation Act 2005 (SA), a digital intermediary is a person, other than the author, originator or poster, who provides or administers the online service by which digital matter is published (section 4). A defendant has a defence of innocent dissemination if it proves it published merely as a subordinate distributor, did not know and ought not reasonably to have known the matter was defamatory, and the lack of knowledge was not due to its negligence (section 30(1)). A subordinate distributor was not the first or primary distributor, nor the author or originator, and had no capacity to exercise editorial control before first publication (section 30(2)).
Once judgment or an injunction is obtained against the defendant, a court can order a digital intermediary that is not a party to take access prevention steps (section 37A). A complainant can also seek preliminary discovery to identify a poster (section 21A). User terms should ban unlawful content and set out a complaints process the platform actually follows.
Can seller terms be unfair?
Yes, and the platform can be penalised for them. A small business contract is one for a supply of goods or services where a party employs fewer than 100 people or had turnover under $10,000,000 in its last income year (ACL section 23(4)). An unfair term in a standard form small business contract is void (section 23(1)), and since 9 November 2023 proposing or relying on one is a contravention (section 23(2A) and (2C)). For a body corporate the maximum penalty is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period, and for anyone else $2,500,000 (section 224). A seller agreement alleged to be standard form is presumed to be one (section 27(1)).
A term is unfair if it causes a significant imbalance, is not reasonably necessary to protect the platform’s legitimate interests, and would cause detriment if relied on (section 24(1)). The platform must prove it is reasonably necessary (section 24(4)). Section 25’s examples include terms that let only one party terminate or vary the terms, let one party vary the price without the other having a right to terminate, or let one party decide whether the other is in breach (section 25(b), (d), (f) and (h)). Delisting at will and commission rises with no right to leave are the usual problems.
In ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224, the Federal Court accepted that a term allowing price rises for any reason, with no right to terminate, caused a significant imbalance, as did an unlimited indemnity even where the loss was not the customer’s fault ([56](b), [56](g)). In ACCC v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928, Stewart J made consent orders on agreed facts ([3]) declaring a supplier’s small business contract terms on unilateral variation, automatic renewal, extraneous documents, liability limitation and termination payments unfair and void.
In AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696, decided before the 2023 amendments, a customer that had an effective opportunity to negotiate, and used it, was not on a standard form contract ([93], [96]). Courts must now also weigh repeat use of the same terms (section 27(2)(ba)), which a platform with thousands of sellers on one set of terms will find hard to answer. In the same case, a 36-day suspension of services was not a breach, because the contract let disputed amounts be withheld only after a dispute process the customer had not started ([2], [137] to [140]).
How must booking and service fees be shown?
As part of a single total price now, with more detail from 1 July 2027. For goods and services of a kind ordinarily acquired for personal, domestic or household use, a business that represents part of the price must also state the single price, prominently and as a single figure (ACL section 48(1)). False or misleading representations about price are prohibited (section 29(1)(i)).
From 1 July 2027, a person who, in offering to supply such goods or services, displays a base price must also display any transaction based charge. The display must give its amount (or, if that cannot be calculated, how it is calculated), that it is a per transaction charge, whether it is or may be payable, and whether the base price includes it (new section 48A, inserted by the Competition and Consumer Amendment (Unfair Trading Practices) Act 2026 (Cth)). It must appear while the base price is displayed, legibly, prominently, unambiguously and close to it (section 48A(3)).
Under the rules from 1 July 2027, a transaction based charge is or may be payable by the purchaser, is not for the goods or services themselves, and is payable at the same time as the price (section 48A(7)), so a booking fee added at checkout fits. Charges at the purchaser’s option, payment surcharges and taxes imposed on the supplier are excluded (section 48A(8)). Platforms and sellers should agree who controls each price display.
What will the unfair trading practices ban change?
From 1 July 2027, a person must not, in trade or commerce, engage in unfair trading practices (new ACL section 28B(1)). That is conduct, in connection with supplying or offering goods or services to a consumer, that manipulates the consumer or unreasonably distorts the environment in which they decide, and causes or is likely to cause detriment (section 28B(2)). It does not apply where the consumer is a body corporate, or the supply is in the course of the consumer carrying on a business (section 28B(3) and (4)). It applies to conduct on or after that date, whatever the date of the offer (section 311).
The Act’s examples of conduct that may be an unfair trading practice from 1 July 2027 include impeding consumers’ ability to exercise legal rights, failing to disclose material information or disclosing it in a complex, unclear or untimely way, and using design elements in digital interfaces to put consumers under unreasonable pressure or obstruct their decisions (section 28B(6)). From that date the same maximum penalties will apply to unfair trading practices (section 224, as amended). Countdowns, pre-selected extras, late fees and hard-to-find cancellation are the places to look first.
Who can use buyer and seller data?
Whoever the contracts, the privacy policy and the Privacy Act allow. A small business has annual turnover of $3,000,000 or less for the previous financial year (Privacy Act 1988 (Cth) section 6D(1)), and a small business operator is generally not an “organisation” bound by the Australian Privacy Principles (section 6C). But a business that discloses personal information for a benefit, service or advantage, or provides one to collect personal information from anyone else, is not a small business operator (section 6D(4)(c) and (d)). A lead or directory platform that passes enquiries to businesses for a fee is likely to be caught whatever its size.
A covered platform needs a clearly expressed and up-to-date privacy policy (APP 1.3 and 1.4), and must take reasonable steps to protect the personal information it holds (APP 11.1). From 10 December 2026, the policy must also cover decisions made by computer programs, using personal information, that could reasonably be expected to significantly affect individuals’ rights or interests (APP 1.7 and 1.8), such as automated suspension of sole trader sellers.
An organisation must not use or disclose personal information for direct marketing except as APP 7 allows (APP 7.1), and marketing emails and texts need consent (Spam Act 2003 (Cth) section 16(1) and (2)). A seller given a buyer’s email to fill an order should not assume it can market to them. The seller agreement should say what buyer data sellers get and what they may do with it; the data protection and privacy guide covers the detail.
How similar matters tend to play out
Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. An Adelaide directory of wedding suppliers sells featured listings that always appear first under the heading “Top rated”, though ratings play no part in the order. The heading conveys an impression the ranking does not support, the kind of presentation Moshinsky J found misleading in Trivago ([213], [219]). Labelling the section “Featured (paid)” fixes it.
Middle range. A home services booking platform adds a $9.95 service fee at the last step of checkout, its buyer terms say all payments are non-refundable, and its seller terms let it raise commissions at any time and suspend sellers without reasons. A price shown without a fee every buyer pays is likely to be a part price needing a single total (section 48(1)), and the refund term risks misstating consumers’ rights (section 29(1)(m)). The commission and suspension terms risk being unfair and void (sections 23(1) and 25(a) and (f); JJ Richards at [56](b)). From 1 July 2027 the fee must also be shown with every base price (new section 48A).
Upper range. A national marketplace lets sellers choose which buyers receive review requests, shows “best price” badges based on seller payments, and hosts a forum where a seller says a named competitor sells counterfeits. The review filtering and badges risk contravening sections 18 and 29 (Meriton at [213]; Trivago at [219], [222]). The platform may be a publisher of the post (Voller at [55]), and once the competitor has judgment or an injunction against the seller, a court can order the platform to take access prevention steps (Defamation Act section 37A).
How we act on marketplace and platform terms
Our online marketplace lawyers act for businesses launching or running marketplaces, booking and comparison platforms, directories and deal platforms, and for sellers negotiating or challenging platform terms. For a platform, the aim is terms that put responsibility where it belongs, and displays it can defend.
| Stage | What happens | What we do |
|---|---|---|
| Model | The platform's role, fees and ranking are settled. | Advise who supplies whom, how fees and rankings must be shown, and the 2027 changes. |
| Terms | Buyer terms and the seller agreement are drafted. | Draft both so they fit together, with review, content and privacy policies. |
| Launch | Listings, reviews and payments go live. | Check price displays, badges, review invitations and consents. |
| Disputes | A buyer, seller or competitor complains. | Advise on refunds, delisting, takedown requests and defamation complaints. |
| Regulator | The ACCC or another regulator makes inquiries. | Advise on exposure and the response. |
We cannot promise an outcome, and no lawyer can. We can make sure the platform’s terms and displays are checked before a regulator or a seller tests them.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Online marketplace case law
Trivago concerned a comparison platform’s own display. The others concerned other businesses; each decided a point that applies to platforms and their sellers.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| ACCC v Trivago N.V. [2020] FCA 16 | Federal Court | A top-position display misled consumers about price | [213], [216], [219] to [222] |
| ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305 | Federal Court | Filtering review invitations was likely to mislead | [213], [216] |
| Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 | High Court | Page owners who encouraged third-party comments were publishers of them | [55], [105] |
| ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 | Federal Court | Unilateral price variation and unlimited indemnity terms were unfair | [56](b), [56](g) |
| ACCC v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928 | Federal Court | Variation, renewal and termination terms declared unfair by consent | [3]; declarations |
| AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696 | Federal Court | A negotiated contract was not standard form; suspension followed the contract | [93], [96], [137] to [140] |
Case notes
ACCC v Trivago N.V. [2020] FCA 16
Moshinsky J found that the platform’s green, larger top offer conveyed it was the best offer, which hover-over text did not dispel ([213], [216]). Higher priced offers took the top position in 66.8% of listings ([220]). That was misleading conduct and a false or misleading price representation ([219], [222]).
ACCC v Meriton Property Services Pty Ltd [2017] FCA 1305
A serviced apartment business kept guests who had complained out of its review invitations. Moshinsky J held this was likely to mislead under section 18 ([213]) and liable to mislead the public about its services under section 34 ([216]).
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
The High Court dismissed the media companies’ appeals. Facilitating, encouraging and thereby assisting third-party comments made them publishers (Kiefel CJ, Keane and Gleeson JJ at [55]; Gageler and Gordon JJ at [105]).
ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
Moshinsky J declared eight terms of the supplier’s small business standard form contracts unfair and void, accepting that unilateral price variation and an unlimited indemnity caused a significant imbalance ([56](b), [56](g)) and were not shown to be reasonably necessary ([57] to [58]).
ACCC v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928
After a mediation, Stewart J made consent orders on agreed facts ([3]) declaring the variation, renewal, extraneous document, liability limitation and termination terms of the supplier’s small business contracts unfair and void.
AIBI Holdings Pty Ltd v Virtual Technology Services Pty Ltd [2022] FCA 696
Decided before the 2023 amendments. Perram J held the agreement was not standard form, the customer having had an effective opportunity to negotiate ([93], [96]), and that suspending services while invoices were unpaid was not a breach ([137] to [140]).
Frequently asked questions
Is a marketplace responsible for faulty goods sold by its sellers?
Usually the seller is, because the seller supplies the goods and owes the consumer guarantees (ACL sections 54 to 56). A platform that sells the goods itself is the supplier, and any platform answers for its own promises, such as a buyer guarantee (section 29(1)(m)).
Can a platform say all payments are non-refundable?
Not if that suggests consumers have no remedy when goods or services fail a guarantee. That would misrepresent their rights (ACL section 29(1)(m)), and terms excluding the guarantees are void (section 64(1)).
Do paid or sponsored listings have to be disclosed?
In practice, yes, where payment affects ranking or labels. In ACCC v Trivago, Moshinsky J found that a top-position display in which payments to the platform were a very significant factor misled consumers ([219], [221]).
Is posting fake reviews illegal?
Yes, for a business acting in trade or commerce. A false or misleading representation that purports to be a testimonial is prohibited (ACL section 29(1)(e)), and the section 224 maximum penalties apply.
Can a platform remove negative reviews?
Only under a genuine rule applied the same way to all reviews. Excluding guests who had complained from review invitations was likely to mislead in ACCC v Meriton ([213], [216]).
Is a website liable for defamatory comments posted by users?
It can be. In Fairfax Media v Voller, page owners who facilitated and encouraged third-party comments were publishers of them ([55], [105]). The Defamation Act 2005 (SA) has an innocent dissemination defence for subordinate distributors (section 30).
Can a platform change its commission without notice?
It is risky. A term letting one party vary the price without the other having a right to terminate may be unfair (ACL section 25(f)), and a unilateral price variation term was accepted as causing a significant imbalance in ACCC v JJ Richards ([56](b)).
Do booking fees have to be included in the advertised price?
Under current law, a part price needs a prominent single total price for consumer goods and services (ACL section 48(1)). From 1 July 2027, transaction based charges such as booking fees must also be displayed with each base price (new section 48A).
Does a small marketplace need a privacy policy?
Often, yes. A business that discloses personal information for a benefit, or provides a benefit to collect it, is not a small business operator (Privacy Act section 6D(4)(c) and (d)), and organisations bound by the APPs must have a privacy policy (APP 1.3).
Do I need an online marketplace lawyer?
Before launch, before changing fees or rankings, or when a seller or regulator complains, yes. An online marketplace lawyer can align the buyer terms, seller agreement and platform displays with the ACL. A free 30-minute consultation will tell you where you stand.