The Full Federal Court today allowed an appeal in part by TPG Internet Pty Ltd against orders made by Justice Murphy in favour of the Australian Competition and Consumer Commission. TPG appealed Justice Murphy’s orders on liability and relief in relation to TPG’s $29.99 ADSL 2 + Advertising Campaign which ran between 2009 and 2011. Justice Murphy’s orders included a pecuniary penalty of $2 million for false and misleading conduct under the Australian Consumer Law.
The Full Federal Court found that Justice Murphy erred in applying the legal test of whether the advertisements misrepresented the offer and also erred by not giving appropriate consideration of consumers’ knowledge relating to bundling practices and set up charges.
Justice Murphy’s orders relating to the first initial television advertisement were upheld by the Full Federal Court. Justice Murphy’s orders regarding TPG’s contraventions of s.53C, which related to the prominence of the total single price, continue to stand. TPG did not appeal Justice Murphy’s finding that it had contravened section 53C in relation to the initial television advertisement and the Full Federal Court upheld His Honour’s section 53C findings in relation to the first set of website and newspaper advertisements.
The ACCC is currently reviewing the Judges’ reasons. The ACCC will continue to take enforcement action to improve clarity in advertising in the telecommunications industry as a priority.
The parties have been asked to provide additional submissions on penalty and orders in January 2013.