Tuesday, 29 September 2020 11:00

Telstra loses case against Optus ad wording, ordered to pay costs Featured

Telstra loses case against Optus ad wording, ordered to pay costs Image by Edward Lich from Pixabay

Australia's biggest telco Telstra has lost a case it filed against its nearest competitor, Singtel Optus, in the Federal Court, claiming that wording used in an ad by the latter indicated that it (Optus) had greater coverage of Australia than Telstra.

In a judgment handed down on 25 September Justice J. Jagot said the originating application should be dismissed and ordered Telstra to pay Optus' costs.

Telstra had claimed that Optus' use of the phrase ""covering more of Australia than ever before" meant that the number two telco was claiming that its coverage was greater than that of Telstra.

As iTWire pointed out at the time: "Any fifth-grade student would be able to understand that the phrase, used in advertising by Optus, can only mean one thing: the company's own coverage is extending to more of Australia than it did earlier."

Telstra sought a court order to prevent Optus from stating that it enjoyed network superiority.

At the time the case was filed, Optus indicated that it was not taking it seriously, uploading a video (below) to YouTube to underline the claim it had made in the ad.

Justice Jagot said in his ruling: "I agree with Optus’s contentions. When each advertisement is viewed as a whole Telstra’s contentions as to the representations conveyed are untenable.

"I am unable to accept Telstra’s contention that the advertisements convey any representation about the coverage of Optus’s network compared with the coverage of any other telecommunications network including Telstra. As Optus submitted:

"The advertisements contain no reference to any provider other than Optus.

"The focus is on Optus from the beginning to the end of the advertisements given the superimposition of the Optus “Yes” logo over each image before the statement “covering more of [Australia/State] than ever before” followed by the word “OPTUS”.

"The superimposition of the Optus “Yes” logo over the images conveys the message that Optus’s mobile network is available to those areas or areas like them.

"By the time the final image and the allegedly offending words are reached the viewer knows that the advertisement is about the areas where Optus’s mobile network is available. The viewer will construe the statement 'covering more of [Australia/State] than ever before' followed by the word 'OPTUS' as meaning that Optus is covering more of [Australia/State] than ever before.

"The natural and ordinary meaning of the statement, in the context of the advertisements as a whole, is that Optus is 'covering more of [Australia/State] than it has ever covered before'.

"The context is critical. By the time the viewer reaches the impugned statement they are aware from the use of the 'Yes' logo that they are being told something about Optus’s mobile network and they understand the sentence in that context as inherently self-referential.

"The words 'ever before' do not suggest that Optus has achieved something no telecommunications provider has achieved ever before. The words must be considered in the overall context of each advertisement. In that sense they are manifestly self-referential."

Contacted for comment, Andrew Sheridan, Optus vice-president, Regulatory and Public Affairs, said: "The judgment is a win over unnecessary bullying tactics, and more importantly a reminder to all Australians that Optus offers an amazing national network that they don't have to pay through the nose to enjoy.

"Optus has made significant investments to expand our footprint, improve coverage and experience and the ruling is a win for competition, choice and most importantly customers.

"We will continue to deliver choice for Australians: whether it is our extensive mobile network, our unique in-the-home or on-the-go 5G service, or our leading home broadband service - we have you covered and at the value you need."

Telstra was contacted for comment, but has not responded.

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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