ACCC seeks special leave from High Court regarding TPG advertising

A trial judge had found certain TPG’s Unlimited ADSL2+ ads misleading

The Australian Competition and Consumer Commission is seeking a special leave of the High Court to appeal a Full Court of the Federal Court decision that has ruled TPG’s advertisements for its Unlimited ADSL2+ broadband internet service were not misleading, disagreeing with an earlier penalising ruling by a trial judge.

ACCC has filed for an application to appeal the Full Court of the Federal Court that handed down on 20 December 2012 its decision which allowed TPG’s appeal in part, finding that most of the advertisements were not misleading, and also disagreed with the penalty orders of the trial judge, Justice Murphy.

The trial judge had found that TPG’s initial and amended Unlimited ADSL2+ advertisements, used between September 2010 and November 2011, were misleading because they conveyed the impression that TPG’s Unlimited ADSL2+ broadband internet service could be acquired at a cost of $29.99 per month, when in fact this service could only be acquired with a “bundled” home telephone line for an additional $30 per month, ACCC said.

Justice Murphy also found that the initial advertisements, used for 12 days in September and October 2010, were misleading because they represented that TPG’s Unlimited ADSL2+ broadband internet service could be acquired without any obligation to pay a set-up charge, when in fact consumers were required to pay a set up fee of $79.95 or $129.95.

The Full Court has held that the only misleading advertisements for TPG’s Unlimited ADSL2+ offer were the initial television advertisements. It also held that other TPG advertisements were not misleading because the bundling requirement and set up charges were adequately disclosed, and in any case the ordinary or reasonable consumer would have known that these services are commonly bundled and that set-up charges are often applied.

The Full Court also disagreed with the $2 million in penalties ordered by Justice Murphy, and noted that in its view a total penalty of $500,000 would have been appropriate. The Full Court has directed the parties to seek to agree, or make submissions, on the question of penalty and other relief in relation to the more limited conduct found by the Full Court to be misleading.

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