The recent decision of the Federal Court in ACCC v TPG Internet
Pty Ltd1 sets out clear guidelines in respect of sales
promotions, particularly in respect of the manner in which prices
should be displayed and conditions identified. This is relevant to
all businesses, including gambling and betting operators.
The TPG advertisements considered by the Court related to a new
broadband offer where, for $29.99 a month, customers could sign up
to their unlimited ADSL2+ network. However, the fine print stated
that this offer was available only as part of a package which cost
an additional $30, and involved an upfront setup charge and
deposit. As a result, the Court determined that the advertisement
constituted misleading and deceptive conduct in contravention of
sections 52 and 53 of the Trade Practices Act (now sections 18 and
s 29 of the Australian Consumer Law).
The clear principle from the decision is that any information
which corrects or qualifies the primary message of an advertisement
must be sufficiently clear and prominent if it is to prevent the
primary message from being misleading. With this principle in mind,
gambling industry participants must ensure that their promotions as
a whole are truthful. If any qualifications exist, they must be
clear, precise and prominently stated.
One example where these principles should be followed relates to
promotions for sportsbetting operators which offer bonus bets.
Initially, they may appear to offer very attractive incentives.
However, where the website terms and conditions qualify (or if
there exists small print at the bottom of the advertisement which
qualifies) substantially the unconditional nature of the bonus bet
being promoted, considerable care must be taken to ensure that
those conditions are prominently stated. For example, if it is a
requirement that a customer must deposit $250 to get a $250 bonus
(rather than receiving the $250 in any event), this must be obvious
on the face of the advertisement (or the relevant page of the
website). A failure to do so may give rise to a claim in misleading
and deceptive conduct.
In considering the Internet advertisements of TPG, the Court
found2 that they did not display corrective information
with sufficient prominence or clarity to dispel the false dominant
message. Just because information is present somewhere on a website
is not enough. Advertisers should ensure prominence and
transparency when creating promotional campaigns. This is
particularly relevant to betting operators, as well as other
participants in the gambling sector.
Section 53(g) (now section 29(m) of the ACL) prohibits a
corporation from making a false or misleading representation
concerning the existence, exclusion or effect of a condition. Some
bookmakers may wish to include a promotion where you can
"refer a friend and get a $50 bonus bet. In many cases of
promotions of this type, there is often a statement in the terms
which states that a condition applies, namely that the friend must
not only sign up but must also deposit money and make a bet above
$50. This may not be clear on the face of the advertisement and the
conditions may not be sufficiently prominent or clear. As a result
of the TPG decision, there is a risk of a contravention of section
In TPG, the Court stated "it is an unfair trade
practice to require consumers to find their way through to the
truth, past advertising stratagems which have the effect of
misleading or being likely to mislead them". This comment
applies to all advertisements, such as gambling sector advertising
just as much as to promotions by mobile phone providers or
supermarkets. Consumers should not be forced to find out for
themselves details of the conditions.
All gambling companies must be aware of the risk that arise in
respect of promotional materials and take care in structuring their
advertisements so as to not mislead or deceive.
This is not a gamble that should be taken.
1 FCA 1254 2At para 92
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The line separating commercial speech from First Amendment-guaranteed free speech has become blurred in the Internet age,.
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