For a change, this post isn’t about rent-to-buy property.
New: If you would like some legal information about running a similar case, send me an email (see the “about” page for my email address) or leave a comment (I won’t publish your comment) and I will send you a document by email.
This is about one person’s dispute with online marketing/SEO business Publicity Monster (PMAU), in the hope that it might help others in a similar situation. For more about complaints regarding PMAU see hundreds of comments on the Whirlpool Forum here.
Publicity Monster, PMAU Pty Ltd, Premium Local, Search Results
Publicity Monster is part of Search Results Group, as is Premium Locals and The Online Media Agency. Publicity Monster is a registered business name of PMAU Pty Ltd.
Web addresses for Publicity Monster, PMAU and Premium Locals, all redirect to searchresultsdotcomdotau.
The Invigor Group is in the process of purchasing the Search Results Group at the time of writing. [update May 2015 this purchase did not proceed]
A list of tribunal applications on the Whirlpool forum suggests there have been about 80 disputes brought against PMAU (Consumer, Trader & Tenancy Tribunal (CTTT) in NSW and Victorian Civil & Administrative Tribunal (VCAT) in Victoria).
What does PMAU do?
PMAU “specialises in growing small businesses online using Online Marketing, Search Marketing, Google Places Optimisation and organic SEO” (according to the search results website which PMAU’s web address diverts to). PMAU sells it services to small businesses through cold calling. Customer complaints are generally that they don’t get what they are promised, that they are automatically charged another fee at the end of 12 months, and that the business is not responsive to complaints. Given the way the business markets its service, and the number of complaints and disputes that have been made, it could be open to surmise that the business relies on locking customers into a contract, and frustrating customers’ efforts to complain, rather than providing a good service and hoping for ‘word of mouth’ referrals.
PMAU has been mentioned in a number of media stories:
A forum discussion about problems with PMAU started in May 2012 and is now 250 pages long.
My friend L is window cleaner. He received a call from PMAU, offering to make his business higher in Google searches. He had recently had a website developed (not by PMAU) and assumed the services being offered related to giving his website a higher ranking. PMAU said something about making his business higher in “google places”. He recalled mentioning that he wanted his business to show up when people used the term “window cleaning Mornington Peninsula”. Without any written contract, it is difficult to understand exactly what services were being offered – and I’m still not entirely sure.
PMAU sent L emails from time to time, showing that his business’ name was in the “top 7” when people searched for “window cleaning McCrae” or “gutter cleaning McCrae”. These “top 7” rankings were for his business’ entry in Google Places – not for his business’ website. While L recalls answering ‘yes’ when PMAU asked him whether he cleaned gutters, this is not his main business, and while he was based in McCrae, only about 5% of his business came from there . While L felt he’d been misled, and that the services were of little – or no – value, he initially felt he had ‘done his dough’ and didn’t take any action. However, when PMAU tried to charge his credit card again 12 months later, arguing that he’d agreed to that by phone, L decided to lodge a dispute with the Victorian Civil and Administrative Tribunal (VCAT). L had changed banks (and therefore credit cards) so PMAU were unable to debit his account. Instead, they had debt collectors pursue him for payment for the second 12 months. The exact amount being claimed is unclear because different debt collection letters added different amounts for collection fees.
Victorian Civil and Administrative Tribunal (VCAT)
There were a few false starts, which were appeared to be mainly the fault of VCAT. VCAT made an error in an address, and a hearing was set down for a date when L had advised VCAT he would be away. Prior to the final hearing VCAT had made orders, including that PMAU provide any documents to support their case, and the audio recording to VCAT and to L a week before the hearing.
The person representing PMAU by phone identified himself as Adam Chidiac.
Despite having significant notice of the hearing this time, PMAU appeared unprepared. The VCAT member had to call them three times before they answered the phone number they had provided, and they had not provided the audio recording to L and VCAT as they were ordered to do. PMAU had, however, provided about 50 pages of logs and emails, without any page numbers – which presented some challenges when they referred to a particular email over the telephone, and L and the VCAT member had to trawl through the documents to find what they were referring to.
Early in the hearing, the member stepped out to allow the parties the opportunity to settle. L took this opportunity to ask PMAU to play the audio, which contained only part of one of the two phone conversations that formed the contract. As well as recording PMAU saying that the contract would be automatically renewed, PMAU was also recorded agreeing to the search term that L said was important “window cleaning Mornington Peninsula”. The member returned and asked if any offer had been discussed – the parties requested a bit more time. PMAU made an offer to settle – they offered to provide further services to L for the money they were claiming he owed them, saying that PMAU had changed over the years. Not surprisingly, L rejected this offer, and the member returned and the hearing continued.
At the end of the hearing, the decision was that PMAU repay L all the money he had paid ($1,317.80), and a declaration was made that no money is owing by L to PMAU ($3,030 or any other sum).
Given that the decision itself is brief, I do not want to attempt to assume how the Member came to the decision. However, I have outlined a number of the issues that were raised and/or considered during the hearing, as well as some that were not. While I have had help from a lawyer in writing this up and hope it may help others, it is not legal advice.
What were the issues?
The following is my understanding of the issues arising from the PMAU contract and conduct. There is no record of the full contract and no written reasons for the VCAT decision.
• The terms of the contract were solely the content of the telephone conversation. This did not appear to be disputed by PMAU, although they (unsuccessfully) argued that the 90 day guarantee terms should apply. It is difficult to see how written terms and conditions could apply when those terms and conditions weren’t provided to, or brought to the attention of the customer.
• There were two telephone conversations, but PM only had a recording of part of the second call.
• The member initially appeared to focus on establishing the terms of the contract, what PMAU promised to provide, and whether PMAU could prove that their services had achieved what PMAU had claimed.
• While L didn’t need to make this point, the use of the term “google places” in a verbal agreement was understood by him to simply mean that his business’ website would be high in results from a google search. This would be a reasonable assumption by many customers who were unaware of what “Google Places” means (a ‘service’ which businesses can sign up to at no cost, and has nothing, or little, to do with the business’ own website). This shows the problem of having a verbal contract when dealing with complex products, but L believed that what he thought he had agreed to on the phone was very different from what PMAU were providing.
• The recording showed that PMAU said the business would be kept in the top 7 for 12 months (or something similar). While PMAU pointed out the “congratulations you’re in top 7” emails, these only showed that the business was in top 7 on that day.
• The recording also showed that L had stressed that the search term that was most important to his business was “window cleaning Mornington Peninsula”.
• “Window cleaning Mornington Peninsula” was not one of the terms that PMAU tried to get high results for. The search terms used by PMAU (including to show the business was in the ‘top 7’) were very narrow terms such as “gutter cleaning McCrae”. While L had told PMAU the on the phone that he did clean gutters if requested, this was not his main business, and the small suburb of McCrae is the source of less than 5% of his business (it’s not surprising that L’s business would rank highly with this narrow search term which is probably rarely used by potential customers).
• Even if L hadn’t asked for that search phrase, emails from PMAU say that “key phrase research has begun to make sure we have optimised for the best key phrases possible”. It is pretty clear from the search phrases they used for L’s business (most of them not even mentioning his main service -window cleaning) that the phrases weren’t optimised to be “best” for L’s business.
• When it was suggested that PMAU could not show that their services had provided the promised results, PMAU argued that L wasn’t entitled to any money back due to the terms of their 90 day money back guarantee. I understand that the VCAT member said that if PMAU didn’t achieve what it said it would, then the purchaser had rights under the Australian Consumer Law regardless of any limitations in the wording of a guarantee.
• According to the Australian Consumer Law services must be fit for the purpose or give the results that you and the business had agreed to. This applies to all purchases for less than $40,000 regardless of whether the purchaser is a business or consumer.
• PMAU said that L had agreed on the phone to automatically renew the contract. They said they didn’t have any legal obligation to remind L of the impending renewal, but said they did send an email as a courtesy. The email said “Renewal for [business name] is due in 14 days. To make sure that your listing is not suspended and is removed from the front page, make sure your account details are all up to date or log in to make sure”.
• While PMAU tried to argue they had no obligation to send a reminder about renewal, I understand that the VCAT Member found the renewal notice was misleading. I believe this was because the email didn’t say anything to warn the customer about a cost being incurred if the customer didn’t take any action, and by mentioning other consequences of taking no action, it may have misled the customer about the full consequences.
More than two months after the hearing, Publicity Monster has not paid L. any of the $1317.80. He wrote to the CEO of Invigor, Gary Cohen, to ask him to follow up this unpaid judgment. However, he has since been made aware that Invigor does not currently have any interest in, or control over, Publicity Monster. (updated 10 Sep 14)
About 6 months after the VCAT order was made, Luke recently received full payment, in addition an amount to cover the legal costs outlayed to enforce the order. (updated 8 Feb 15)