Australian Competition and Consumer Commission v HealthEngine Pty Ltd

In the Federal Court of Australia, the Australian Competition and Consumer Commission (ACCC) brought proceedings against HealthEngine Pty Ltd for contraventions of sections 18, 29(1)(b), 29(1)(e) and 34 of the Australian Consumer Law (ACL). The ACCC alleged that HealthEngine engaged in misleading conduct by not adequately disclosing that personal information provided by patients seeking health insurance comparison services would be shared with a third-party insurance broker, rather than being managed by HealthEngine itself. This conduct was found to have breached the ACL.

The primary legal issues before the court were whether the agreed declarations, orders and pecuniary penalty proposed by the parties were appropriate in the circumstances. The court considered the principles of consumer law, particularly the course of conduct principle, which requires consideration of the overall pattern of conduct rather than isolated instances. The court also needed to determine if the proposed orders would ensure compliance with the ACL and provide adequate deterrence and remedy.

The court approved the agreed declarations, orders and penalty, finding that they were appropriate and in the public interest. The court noted that HealthEngine had cooperated with the ACCC and taken steps to rectify the misleading conduct. The penalty of $2.9 million was considered sufficient to deter future breaches and to provide a remedy to affected consumers. The non-punitive orders, including annual reviews of HealthEngine’s compliance program and mandatory notification to affected consumers, were seen as measures that would promote ongoing compliance with the ACL. The court concluded that the agreed orders balanced the need for deterrence, remedy and compliance.

The court made orders for HealthEngine to pay a pecuniary penalty of $2.9 million in instalments over two years, to undertake annual reviews of its compliance program for three years, to notify affected consumers about the information breach and to pay the ACCC’s costs of the proceeding. The orders were designed to ensure HealthEngine complied with the ACL and to provide redress to consumers affected by the misleading conduct.