Australian Competition and Consumer Commission v TPG Internet Pty Ltd

The Australian Competition and Consumer Commission (ACCC) brought proceedings against TPG Internet Pty Ltd (TPG) in the Federal Court of Australia. The dispute concerned TPG's advertising of its "Unlimited Broadband" plan, which the ACCC alleged was misleading and deceptive, contravening section 52 of the Trade Practices Act 1974 (Cth) (now section 18 of the Australian Consumer Law). The ACCC contended that TPG's advertising failed to adequately disclose the existence of a 1.5 GB per month data limit before the service was throttled to a significantly slower speed, thereby misleading consumers into believing they were receiving an unlimited service without such a restriction.

The primary legal issue before the Full Federal Court was whether TPG's advertising campaign, particularly its prominent use of the term "Unlimited Broadband" alongside smaller print disclosures about the data limit and speed reduction, was misleading or deceptive in contravention of the Trade Practices Act. The court was required to consider the overall impression created by the advertising on the ordinary reasonable consumer and whether the disclosures were sufficiently clear and prominent to qualify the unqualified claim of "unlimited."

The Full Federal Court upheld the trial judge's finding that TPG's advertising was misleading. The court reasoned that the prominent display of "Unlimited Broadband" created a strong initial impression that the service was truly unlimited. While TPG did include disclosures about the data limit and speed throttling, the court found these disclosures were not sufficiently prominent or clear to counteract the dominant misleading message. The court applied the principle that the overall impression of an advertisement on the ordinary reasonable consumer is paramount, and any qualifications or limitations must be presented in a way that is readily apparent and not obscured by more prominent, unqualified claims. The court found that the average consumer, in viewing the advertisement, would likely have understood the service to be unlimited in the ordinary sense of the word, without the significant restriction imposed by the data cap and subsequent speed reduction.