Fine print in ad not good enough, says High Court of Australia

The High Court of Australia has provided important guidance for companies advertising their services to the public in holding that TPG had engaged in misleading and deceptive conduct and had made false or misleading representations in advertisements for its ADSL2+ broadband services.

Background

On 26 June 2012, we reported that the Australian Competition and Consumer Commission (ACCC) was successful in obtaining orders in the Federal Court penalising TPG $2 million for running advertisements on television, radio, newspapers and various websites promoting its new internet plan.1

The advertisements stated in large and prominent print that customers could obtain 'Unlimited ADSL2+' for $29.99 per month. Also in the ads, but significantly less prominent, were the conditions that the customer had to incur set-up costs and bundle the internet plan with a $30 per month phone line rental.

After that ruling, TPG appealed to the Full Court of the Federal Court of Australia who largely overturned the decision finding that the relative prominence of the conditions was not important because advertisements needed to be read as a whole, not just for their 'dominant message'. Based on this, the Full Court found all but three of the advertisements to be compliant and the pecuniary penalty was reduced from $2 million to $50,000. 2

The ACCC appealed to the High Court.

The High Court's decision

The majority of the High Court (French CJ, Crennan, Bell and Keane JJ, Gageler J dissenting) found that the Full...