ACCC Vs TPG Internet Pty Ltd: A Legal Battle Over Advertisement Campaign

The questions you will be required to answer are designed to enable you to express your own understanding of what the three courts separately determined. However, this is not a cut and paste exercise. It is not possible to answer the questions simply by locating the relevant paragraphs in the judgment and copying them into your answer.  Doing so will result in a high similarity index in Turnitin and a low mark for the group. 

The report discusses the hearings, proceedings, and judgments that had occurred between the Australian Competition and Consumer Commission (ACCC) and TPG Internet Pty Ltd. The case was between the two pioneer companies related to controversy an advertisement campaign (Yuile and Star, 2017). The report includes the different aspects and perspectives that were related to the hearing of causes and decisions that were given by the judges related to the case.

TPG was found to be promoting a multi-media campaign that was related to the offers which were provided to the consumers for the provision of ADSL2+ service. The price which was offered to the customers were attractive in nature and proposed that the consumers can avail internet services through telephone lines. This could be done by providing broadband internet connection to the uses with no limit to data downloading facilities. The advertisements that were promoted by TPG offered that ADSL2+ service was to be provided at $29.99 per month which was reasonably low. The advertisement proposed that the customer was required to pay a total sum of $129.95 in addition to a deposit of $20.00 which would be charged for the provision of ADSL2+ services along with telephone charges (Vijayasingam, 2017). The Australian Competition and Consumer Commission alleged that the offerings that were given by TPG regarding the provision of ADSL2+ services at the attractive and low price were not in accordance with the 53C(1)(c) of the Trade Practices Act 1974 (Cth) (“the TPA”). The Act summoned that the company must be clear and transparent about the prices that were charged for the provision of the services and products. But in the case of TPG, it was not clear as it did not charge a single figure single price for the package of services which it was provided to the large section of consumers.

A case had come into the notice of Courts in Australia on 12 December 2013. In this case, there were two parties that were the Australian Competition and Consumer Commission (ACCC) and TPG Internet Pty Ltd. appealing against each other. Truman Hoyle was representing TPG for the case hearings that were held in the Federal Court. The case was appealed by ACCC on account of the urgent injunction which was against an advertising campaign that has been initiated and promoted by TPG for the conduction of internet services.

In the first round of hearings, ACCC had appealed in the Court against TPG Internet Pty Ltd. The proceedings were presented under a single judge who was also considered as the primary judge. The single panel judge heard all the pleas of both parties and passed the judgment in favor of ACCC and TPG was found to guilty. The primary judge summoned that the claim made by ACCC was found to be true and therefore made a number of orders against TPG. This included the judgment which incurred that TPG was to pay a pecuniary penalty of about $ 2 million. This led TPG highly dis-contended and unsatisfied. TPG decided to appeal in Full Court against the decision that was given by the primary judge. The primary judge found that the charges that were charged by TPG for the provision of ADSL2+ services were inadequate. Additionally, the advertisement did not provide a clear picture of the payment details which mislead and misguided the customers and consumers who followed the advertisement (Sise, 2016). The primary judge also found that with respect to the television, radio, newspaper and internet advertisements TPG has not made its stand clear regarding the pricing and used to add hidden charges at the time of installing of the services about which nothing was mentioned in the advertisement.

TPG's Advertisement Campaign

The second round the case between Australian Competition and Consumer Commission (ACCC) and TPG Internet Pty Ltd. was held in Full Court. In this case, TPG Internet Pty Ltd. appealed against ACCC (Rimmer, 2017). TPG being losing the case in the single judge was unsatisfied with the case proceedings and made a plea and appealed in the Full Court. Here the case was presented between three judges were present to hear the case and carry out the proceedings in an adequate manner so that the judgment could be passed accordingly. When the case was heard in the Court the three judges highly disagreed with the judgment that was passed by the primary judge and set aside the decision given by him. The judges concluded that TPG was not found to be guilty and passed the judgment in favor of TPG and ACCC was left a loser. However, the three judges found that TPG had been engaged in the conduction of misleading promotions and was liable to pay the pecuniary penalty. The penalty amount was reduced to the amount of $ 50, 000 from the $ 2 million which was summoned by the primary judge. The Full Court sided with the other judgments that were passed by the primary judge and set TPG free from all the charges that were laid down on it related to infringement. This left ACCC highly dis-contended and unsatisfied (Osbich and Temple, 2014). ACCC was decided to appeal in the High Court against the decision that was given by the Full Court judges. The Full court judges also found that the revised advertisement that was presented by the TPG in the court proceedings did not contain any misleading facts and all the promotional advertisements that were published or aired on television, radio, newspaper internet, etc. were not misleading (Kariyawasam and Tsai, 2017). The Court note of both the advertisements which were promoted initial and later on revised after putting the objection.

The third round of the case between ACCC and TPG was held in the High Court. In this case, ACCC appealed against TPG (Hurley, 2014). ACC being losing the case in the Full Court was unsatisfied with the case proceedings and made a plea and appealed against TPG in the High Court. Here in the High Court the case was summoned and heard by a panel of judges who after listening to the pleas of both the parties passed the judgment in favor of ACCC. The High Court highly disagreed with the decisions that were summoned by the Full Court judges and reinstated the decision that was given by the primary judge. The High Court judges considered TPG to be guilty and at fault (Harland, 2016). The Court found that the advertisements that were promoted by TPG before 1 January 2011 were not in accordance to the concise conductions related to the provision of internet services. As per the Australian Consumer Law [2] (“the ACL”) applied with respect to advertisements published on or after that date. Sections 52 and 53(e) and (g) of the TPA are in the same terms as ss 18 and 29(1)(i) and (m) of the ACL it was found that any incorporation not following the directives mentioned by TPA and promoting wrongful content will be liable to pay for the penalty charged against the propagation of inadequate information to a large number of people (Frommer, 2015)

Conclusion

It was found that TPG had been promoting misleading advertisements and was unclear in its pricing policies in the advertisements. TPG was found to be guilty and was required to pay the penalty charges of about $ 2 million which was summoned by the primary judge (Barker, Grantham and Swain, 2015). TPG was found to be guilty on non-performance of the provisions that were laid down by the Trade Practices Amendment (TPA) under the Australian Consumer Law Act (No 2)2010 (Cth).

References

Barker, K., Grantham, R. and Swain, W. eds., (2015). Law of Misstatements: 50 Years on from Hedley Byrne v Heller. Bloomsbury Publishing., 13, p. 273.

Frommer, C., (2015). Minister for the Environment v Karstens [2015] FCA 649. Environmental Law Reporter, 34(15-061/15-068), p.2. (15-061)

Harland, D., (2016). Implementing the Principles of the United Nations Guidelines for Consumer Protection. MIICEMA 2014 ORGANISING COMMITTEE, p.219.

Hurley, T., (2014). High court and federal court notes. Proctor, The, 34(2), p.56.

Kariyawasam, K. and Tsai, M., (2017). Copyright and live streaming of sports broadcasting. International Review of Law, Computers & Technology, Austl. L. Libr, 31(3), pp.265-288.

Osbich, L. and Temple, H., (2014). An Overview of Australian Point-In-Time Legal Research Sites. Austl. L. Libr., 22, p.181.

Rimmer, M., (2017). Back to the Future: The Digital Millennium Copyright Act and the Trans-Pacific Partnership. In Annual Conference, 6(3), p.11.

Sise, P., (2016). An Alternative Approach to the Treatment of Penalties and Fines in Bankruptcy. QUT L. Rev., 16, p.82.

Vijayasingam, R., (2017). An investigation into the need for further regulation of puffery in advertisements, in light of E-Commerce. In Annual Conference (Vol. 64)

Yuile, A. and Star, D., (2017). High court and federal court casenotes. Proctor, The, 37(11), p.34.