Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640
Australian Consumer Law; misleading or deceptive conduct; dominant message in advertisement
Facts: In a series of advertisements published between September 2010 and November 2011 on radio, television and in newspapers TPG Internet Pty Ltd (TPG) promoted a broadband internet service with unlimited download data limit for $29.99 per month. This offer was qualified in the less prominent parts of the advertisements by the condition that the broadband service was only available at this price when bundled with a fixed-line home telephone service for an additional $30.00 per month. A setup fee and deposit were also payable. The Australian Competition and Consumer Commission (ACCC) brought proceedings against TPG alleging that the advertisements constituted misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) and s 18 of the Australian Consumer Law (ACL). The court noted that the relevant sections are, in practice, the same.
Issue: Although the advertisements contained all the relevant information for an accurate understanding of the offer, did the advertisements, as presented, constitute misleading or deceptive conduct?
Decision: The 'headline' or 'dominant' message of the advertisements had a tendency to lead those at whom they were directed (members of the public who had an interest in broadband internet services) into error as regards the nature of the offer being made.
Reasons: A person may be led into error for the purposes of the Acts even if they do not actually enter into any legal transaction as a result of the conduct in question. It was sufficient, the court said [at 50], that the persons targeted by the advertisements were ‘enticed into “the marketing web” by an erroneous belief’ engendered by an advertiser. In addition, the court found that the likely error would not, in the circumstances, be the result of the targeted persons’ failure to attend to all the details contained in the advertisement but rather to the way in which the dominant message was emphasised and the other details de-emphasised. This was because the advertisements deliberately sought to present the headline information selectively. The court also took into account that the target audience would consist in part of persons who were not familiar with broadband services and who might not expect the main offer to be conditional on additional bundled services. It was not relevant that TPG had no intention to deceive. Accordingly, TPG had engaged in misleading or deceptive conduct and a substantial pecuniary penalty was imposed.