ACCC v TPG Case Analysis: Misleading Ads and Legal Rulings

ACCC v TPG Case Analysis 1
Australian Competition and Consumer Commission V TPG Internet Pty Ltd Decision Analysis
Name
Course
Tutor
University
City
Date

ACCC v TPG Case Analysis 2
Australian Competition and Consumer Commission V TPG Internet Pty Ltd Decision
Analysis
 When TPG embarked on a multi-media advertising campaign between 2010 and 2011,
they were found to have contravened the statutory standards set by legislation and
controlled by the Australian Competition and Consumer Commission (ACCC). In the
ads, a protuberant offer of unlimited ADSL2+ service was displayed at a monthly cost of
$29.99. A less protuberant offer was also displayed in the advertisement requiring
consumers bundle service that would be provided for an extra $ 30 monthly fees for at
least six months. Further charges applied in setup fees totaling to $129.95 and a deposit
of $20 in telephone charges.
 The ACCC argued that the details of the advertisement were deceptive and misleading
contrary to the provisions of s 18 of the ACL and s 52 of the TPA reason being that there
was no difference between the protuberant message and the less protuberant message
with respect to the offer. The ACCC further asserted that some of the ads went contrary
to s 53C (1) (c) of the TPA as they failed to stipulate, in a protuberant manner and as a
specified figure, the price for the package of offered services. The issue was first brought
before the primary judge and later appealed to the Full Court judge bench of three. The
decision was finally appealed in the High Court which made the final decision on the
matter. The following were the rulings made by each set of judges:
Primary Judge’s Position
 According to the primary judge, TPG’s target audience had knowledge of the product
being promoted. It did not take into account individuals who knew little or nothing
concerning broadband internet services (p 18).

ACCC v TPG Case Analysis 3
 The bundling condition was scrutinized by the primary judge. He found out that the
dominant term "Unlimited ADSL2+ for $29.99 per month" would be taken to mean that
the services provided to entirety would cost $29.99 monthly by any reasonable man,
without any other charges or obligations attached to it.
 As a result, the dominant message was held to be false as stated by the judge "because –
as TPG conceded – ta consumer has to also pay an additional $30 per month for him or
her to acquire the Unlimited ADSL2+ for $29.99" (p 21).
 The judge also observed that the intention of the bundling condition was to increase the
monthly charge by two which –if known to the audience- would be a less attractive deal.
It would require consumers to go an extra mile of acquiring an extra broadband service
and an extra cost on telephone charges is not what young people would ideally want.
Therefore, the principle judge was of the opinion that TPG, with an unconscionable
bargain power, exploited its position and acted maliciously by making its audience
believe that they can get services at a lower cost than what they were in fact offering
(Dean, 2013).
 To this effect, the judge expressly stated that the message about the bundling condition
by TPG ought to have been quite unequivocal and protuberant if it was to rectify the
misleading impression it tended to create.
 As for the set-up fees, the primary judge agreed that –as it is the marketing culture in the
industry- such fees are normal when it comes to broadband contracts for less than two
years. However, with the dominant message giving an explicit message of no further
charges, it was reasonable to believe that the setup fees was nullified in the process.