On 12 December 2013 the High Court of Australia held TPG
Internet Pty Ltd had engaged in misleading and deceptive conduct
when it ran certain advertisements between 2010 and
TPG's advertisements for ADSL2+ "prominently
displayed" a price for the service of $29.99 per month, while
qualifying the offer 'much less prominently' with
conditions that more than doubled the overall price.2
The Australian Competition and Consumer Commission
(ACCC) was initially successful in pursuing TPG
for misleading and deceptive conduct when the case went to the
Federal Court of Australia, however it was overturned when TPG
appealed to the Full Court of the Federal Court of Australia.
The High Court held that the initial decision of the Federal
Court was correct. While the Full Court of the Federal Court noted
that 'many persons will only absorb the general thrust' of
an advertisement,3 the High Court took the view that it
did not give proper consideration to the importance of the
"dominant message" of an advertisement. The High Court
further reasoned that misleading and deceptive conduct would occur
not when a customer signed up with TPG but simply where an
advertisement had 'a tendency to lead a consumer into
This was the case in this instance, as the words indicating the
price of $29.99 were emphasised while the words indicating the
balance of the price were "relegated...to relative
obscurity".5 The High Court made its finding
irrespective of the fact that many consumers would have knowledge
of the qualifying conditions in the advertisements.
What does this mean for you and your business?
The decision demonstrates that companies need to focus on
clarity when advertising their goods and services, and should
ensure that advertisements truthfully represent the overall price.
While an attempt to highlight the "attractive" aspect of
an offer relative to "less attractive" disclaimers might
be effective at wooing customers,6 it may also result in
the ACCC or a court taking the view that such disclaimers are
ineffective and that the advertisement is misleading.
1Australian Competition and Consumer
Commission v TPG Internet Pty Ltd  HCA 54. 2Ibid . 3Ibid , , , , . 4Ibid , , , . 5Ibid . 6Ibid .
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