The High Court of Australia has granted the Australian Competition and Consumer Commission’s application for special leave to appeal against part of the Full Federal Court decision in relation to TPG’s advertisements for its Unlimited ADSL2+ broadband internet service.

The ACCC’s appeal relates to findings by the Full Court that certain advertisements for TPG’s Unlimited ADSL2+ broadband internet service were not misleading. The ACCC is also appealing the Full Federal Court’s order that TPG pay total penalties of $50,000 in respect of TPG’s initial misleading television advertisements and its failure to prominently display in its initial advertisements the single price for the advertised service.

Background

On 4 November 2011 the trial judge, Justice Murphy, found that TPG’s initial and amended Unlimited ADSL2+ advertisements, which ran 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 plus start up costs.   It was also found that the initial advertisements which ran for 12 days in September and October 2010 did not prominently specify the minimum charge for the advertised service and were misleading for not disclosing additional up front charges.  Justice Murphy subsequently ordered TPG to pay a pecuniary penalties totaling $2 million as well as a range of other relief.

TPG appealed to the Full Court from Justice Murphy’s decision on liability and relief.

On 20 December 2012 the Full Court allowed the appeal in part.  The Full Court upheld Justice Murphy’s finding that the initial television advertisements for TPG’s Unlimited ADSL2+ offer were misleading.  Further, the Full Court did not overturn Justice Murphy’s finding that the initial advertisements did not prominently specify the single price for the advertised service. However, the Full Court held that the other TPG advertisements were not misleading because the bundling requirement and set up charges were adequately disclosed, and that an ordinary or reasonable consumer would have known that these services are commonly bundled and that set-up charges are often applied.

On 4 April 2013 the Full Court ordered that TPG pay total penalties of $50,000 in respect of TPG’s initial misleading television advertisements and its failure to prominently display in its initial advertisements the single price for the advertised service.