Australia: ACCC v TPG - The ACCC bites back in a High Court win Overruling TPG’s successful appeal

Last Updated: 17 December 2013
Article by Kristy Dixon

The High Court has handed down its judgment yesterday in the long running TPG Internet case, restoring the November 2011 judgment of Justice Murphy of the Federal Court that found a series of TPG advertisements relating to its unlimited broadband internet ADSL2+ offering amounted to misleading and deceptive conduct.1

In a 4 to 1 majority judgment, the High Court also restored Justice Murphy's original $2 million pecuniary penalty in lieu of the $50,000 penalty imposed by the Full Federal Court, and ordered TPG to pay the ACCC's court costs relating to the Federal Court and High Court appeals. Given the lapse in time since that original judgment, the Court did not restore the injunctions and corrective advertising that were originally imposed.

The advertisements

TPG Internet Pty Ltd (TPG) ran an advertising campaign in two phases: "initial advertisements" and, after giving an 87B undertaking to the ACCC regarding those initial advertisements, "revised advertisements", over the period from 25 September 2010 to 29 November 2011. The advertisements involved a number of media streams (television, radio, newspapers, billboards and various websites) to promote TPG's new "$29.99 per month" unlimited ADSL2+ broadband internet plan.

In significantly smaller print, the advertisements stated that the customer was required to bundle the service with a home phone rental for an additional $30 per month (with a minimum 6-month requirement), and incur an overall minimum fee of $509.89 including an initial set-up fee of $129.95 and $20 deposit against telephone calls.

The ruling of Justice Murphy, restored by the High Court, found that both phases of the advertisements (except for brochure publications in both phases) conveyed a representation that the broadband internet service was available without the need to bundle, and that the initial advertisements conveyed a representation that there would be no initial set-up fee. All the advertisements were therefore held to be misleading and deceptive, breaching section 52 and 53 of the Trade Practices Act and the successor provisions in sections 18 and 48 of the Australian Consumer Law.2

The exclusion of the brochure publications was based on the premise that consumers would read a brochure more carefully than the other advertising mediums, such that any misleading impression created by the "$29.95 per month" headline offer would likely be corrected by the balance of information.

The dominant message and the average consumer – how sophisticated are they?

The foundation of Justice Murphy's judgement was his Honour's finding that the dominant message of the advertisements was the representation that TPG would provide "unlimited ADSL2+ for $29.99 per month". The lack of clarity and lesser prominence of the qualifying information failed to correct the false impression that was created by the strength and clarity of the dominant message.

The Federal Court appeal decision turned on whether the advertisements would still be misleading if the primary judge had considered the overall impact of the advertisements in their full context, taking into account the attributes of the hypothetical ordinary or reasonable consumer. In their view, the target consumer to whom the advertisements were directed was a person with some familiarity of the market, who would know about the common commercial practices of bundling and set-up charges. Viewed through this prism, the Full Court ruled that the advertisements were not misleading because the bundling condition could not be missed except by "perfunctory" viewing or listening, or would be known as a common commercial practice to the consumer, or both.

The majority High Court judgment supported the primary judge's view that the dominant message is of crucial importance and rejected the appeal Court's view that the tendency of the advertisements to mislead was cured by the knowledge of a more sophisticated consumer. In their words:

...the circumstance that many consumers might know that ADSL2+ services are commonly offered as a "bundle" was not apt to defuse the tendency of the advertisements to mislead, especially where the target audience is left only with the general thrust or dominant message after the evanescence of the advertisement.

Furthermore, the Court asserted that the appeal judgment failed to appreciate that, even if the misleading dominant impression would be neutralised upon a consumer engaging with TPG to sign up to the service, it would have already played its part in leading the consumer to engage with TPG rather than one of its competitors.


The High Court majority judgment also made some interesting comments on the assessment of appropriate penalties for misleading and deceptive conduct, including that it was appropriate for the primary judge to consider advertising via each type of medium to constitute a separate contravention. The Court held that the $2 million penalty did not exceed what was reasonably appropriate to serve as a deterrent to TPG and its competitors, in a context where TPG's 13-month advertising campaign had cost $8.9 million, generating customer growth from 9,000 to 107,000, revenue of approximately $59 million and estimated profit of $8 million. Of course, the total penalty to TPG will also include its own legal costs plus those of the ACCC for the 2 appeals.

Telecommunications advertising

It should be noted that telecommunications service providers are now subject to the Telecommunications Consumer Protections Code that came into effect on 1 September 2012. The advertising restraints included in the Code did not apply at the time of the TPG advertisements in question. These restraints include prohibitions on:

  • advertising a periodic price for a telecommunications product without prominently displaying the "single price".
  • use of the term "unlimited" in reference to usage without qualification unless use is genuinely unlimited; and
  • headline representations for a price or offer that is qualified by fine print terms and conditions;


The outcome of the High Court appeal has arguably removed a degree of uncertainty created by the Full Court appeal judgment, which appeared to adopt a somewhat circumstantial approach to the determination of whether conduct will be considered misleading, rather than one of strict compliance.

It will come as no surprise to any goods and service providers that the case reinforces the need to balance the commercial desire to make a selective presentation of the attractive parts of an offer or its pricing in advertising against what is an accurate impression of the overall offering.

However the more specific points that can be taken from the TPG case in preparing advertising materials are:

  • The advertising party cannot assume a level of consumer sophistication as to how products or services in a particular class are typically offered, such as internet broadband being bundled with line rental or involving set up fees, to correct a misleading impression.
  • The fact that a misleading impression created by advertising is corrected before a consumer signs up to purchase a product or service will not change the misleading and deceptive nature of the advertisement.
  • The medium used for the advertising will be relevant. For example, additional information included in a brochure may impact on the overall impression, while similar less prominent details in newspapers, radio or TV may not have the same effect.


1Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54
2Section 52, Trade Practices Act 1976 (Cth) (TPA) and section 18, Australian Consumer Law, Schedule 2 Competition and Consumer Act 2010 (Cth) (ACL).

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Kristy Dixon
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions