12 March 2011

Gotta love a telco

Last month's Australian Competition & Consumer Commission v Singtel Optus Pty Limited [2011] FCA 87 concerns misleading and deceptive conduct by Optus in breach of s52 of the Trade Practices Act 1974 (Cth).

Advertisements by Australia's second-largest telecommunication service provider had represented that Optus' offer of a broadband internet service included "Unlimited Broadband". Unlimited seems to mean different things to different people, with the Court noting that Optus's plan - ie promoted through the advertisements and covered by the then TPA - "contains a limitation or restriction imposed by the respondent that the speed of the broadband internet service provided to consumers will be reduced to 256 kilobits per second after consumers reach a specified data allowance".

Limitation per se is not a breach of the statute. However the the ads, which appeared on television and in print (very fine print) last year, did not "sufficiently and prominently" state that -
1. that such a reduction will be applied; and

2. that some multimedia uses will be either unworkable or significantly impaired at the reduced speed – including, downloading video content will take between 30 to 70 times longer and video streaming and video calls will not be available or be substantially interrupted or not work at all.
The Court held that -
61. The reason the four advertisements are misleading is that they describe the broadband service as unlimited without qualifying that description by stating both that the speed of the service is dethrottled to 256kbps after a specified data allowance is reached and by stating the particular effects of that speed reduction on the functionality of the service. A declaration should be made which describes the way in which the advertisements contravene s 52 of the Act. This will inform the respondent and other suppliers of broadband services of some of the limits which must be observed in promoting broadband services. It will assist the applicant in fulfilling its statutory regulatory function.
62. The advertising campaigns are long over. There is little point in granting the injunction sought, even though the Court has power to grant an injunction in these circumstances: s 80(4)(a) of the Act. The respondent does not intend to use these advertisements again. The only form of injunction which would be appropriate is that formulated by the applicant at the invitation of the Court and set out in [41] of these reasons for judgment. It was produced as a fall back position rather than as the applicant’s preferred form of relief. The form of the injunction is directed to the circumstances of the present advertisements. As the context of each advertising campaign is important in determining whether an advertisement is misleading it is more appropriate to await concrete circumstances than to grant an injunction unlikely to address the full context of any future advertisements.
In a comment on procedure it noted that
The circumstances in which the applicant brings proceedings in the public interest are often not, or not fully, known to the Court. Hence the Court is generally restrained in commenting on the way in which the applicant prosecutes applications. Nonetheless, some observations should be made in this case.

The advertisements were misleading. In the end, the respondent [Optus]did not put up much resistance to that conclusion. The real argument revolved around the factors which rendered them misleading and, consequently, what relief was appropriate in view of the proper analysis of the nature of the contravention. It took the suggestion of the Court to prompt the applicant to make an application for interlocutory relief. The application resulted in agreed orders in relation to most of the issues raised which went beyond the four advertisements ultimately in contention. By that time the advertising campaigns were over, any harm done to consumers had already occurred. The proceeding was used by the applicant, unsuccessfully as it turned out, to seek to vindicate its view against the general use of the word unlimited in advertising certain broadband services. Whilst it is proper for the applicant to secure elucidation of the law from the Court, it should not be at the expense of assisting individual consumers who might be harmed by ongoing misleading advertising. It may have been a greater public benefit if the applicant had brought an urgent interlocutory application whilst the advertising campaigns were still underway. One need only look at the large number of reported judgments of the Court to see that misleading advertising in the telecommunications industry is an all too common phenomenon. A corporation which engages in such conduct has little to fear if the applicant initiates proceedings only after advertising campaigns are completed. But if a carefully designed and expensive advertising campaign had to be aborted during its currency as a result of an interlocutory injunctions granted by the Court, more care might be taken to ensure compliance with the provisions of the Act, and the consequent protection of the public would be achieved.