As we previously reported, the ACCC and TPG have been battling it out in a marathon match in relation to TPG’s Unlimited ADSL2+ advertisements.  In the ads in question, TPG emphasised the fact that its Unlimited ADSL2+ service was $29.99 per month, with reference to the monthly line rental and set up fees appearing less prominently.

The umpire that is the High Court today overruled the Full Federal Court as linesman at set point.   A majority of the High Court:

  • concluded that the Full Federal Court erred in finding that the home telephone bundling requirement and set up charges were adequately disclosed and consumers would have known that internet services were commonly bundled with telephony services; and considered that there was no appellable error in the trial judge’s approach to finding that these advertisements were misleading.

The High Court also overturned the Full Court’s order that TPG pay total penalties of only $50,000, instead restoring the trial judge’s $2 million penalty (which the High Court considered was within the appropriate range).

Justice Gaegler issued a dissenting judgment, in which he concluded that the Full Court’s finding that bundling of home phone and DSL services was a well-known phenomenon, was not an error of approach.  In his view, the Full Court was entitled to have account of the fact that bundling was a regular industry practice and that, against that background, the TPG ads while focussing on the price of the DSL component were not likely to have created a misleading impression as to the cost of the bundle.

This convincing victory puts another trophy in the ACCC’s cabinet for the 2013 season, following wins against Zamel’s, Australian Power & Gas, Lux, Bytecard and HP over the past 6 months.

The full judgment is available here.