Judge cuts Optus down to size over 'Think Bigger' ad campaign

Stuart Corner
Tuesday, 02 November 2010 15:09

IT Policy - Regulation

Justice Nye Perram has delivered a stinging rebuke to Optus in finding it in breach of the Trade Practices Act for its 'Think Bigger' and 'Supersonic' broadband advertising campaigns.

The ACCC brought an action against Optus in the Federal Court, alleging that Optus had failed to provide adequate details of broadband plan throttling.

The broadband plans advertised contained peak and off-peak quotas but, the ACCC said, Optus did not make it clear to customers that once the peak period data quota had been exceeded the service would be throttled in both peak and off-peak periods, effectively making the remaining off-peak data quota unusable.

Justice Perram found Optus' television advertisements "misleading, in my opinion, seriously so." Nor was he impressed with Optus' recent decision to halt the television commercials for the 'Think Bigger' campaign signalled any change of heart at the company. He said he was "far from convinced either that Optus' recent cessation is anything other than opportunistic, or that it signals some newly obtained underlying comprehension of the need to avoid such tricky behaviour in the future."

He issued an injunction restraining Optus from engaging in similar conduct for the next three years, and ordered the company to pay the ACCC's costs of the proceedings to date. The ACCC is also seeking corrective advertising and pecuniary penalties. Judgment on these issues will be delivered at a later date.

Optus' position had been that it had not breached the law because any consumer who may have been misled by the advertisements had their misapprehensions corrected through the Optus' call centre or website before they signed up for a plan.

Perram supported the ACCC's position that this was not adequate. ACCC chairman, Graeme Samuel said: "This judgment reinforces the ACCC's long held position that this approach is not acceptable commercial practice and does not reflect what the law requires. Companies cannot rely on their call centres to correct advertisements that have misled and deceived people.

"Consumers were told in these ads that they were going to get a certain amount of broadband, and only after you work through confusing and vague disclaimers that you realise that it's just not the case."

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