This article was first published in the Internet Law Bulletin 2013 17(7) at 174.
- When reviewing advertising for legal compliance consider:
- Does the advertising have a dominant message?
- Are there any conditions that impact the dominant message and if so are they sufficiently clear and prominent?
- For internet advertising, it is not sufficient that a consumer can “click” on the advertisement to learn about any conditions that vary the dominant message.
By now many of you have will have heard about the High Court’s decision in the long running misleading advertising dispute between the Australian Competition and Consumer Commission (ACCC) and TPG Internet Pty Ltd (TPG). In its decision handed down on 12 December 2013,1 the High Court reinstated a $2 million pecuniary penalty imposed on TPG for a misleading advertising campaign about TPG’s unlimited broadband bundle.
The 4—1 majority judgment sent a clear message to advertisers to be careful in ensuring that the dominant message of their advertising and marketing is not misleading and deceptive. Advertisers cannot always rely on the fine print of an advertisement to avoid liability under the Australian Consumer Law (ACL), where the dominant message of an advertisement may be considered misleading or deceptive.
TPG’s multimillion dollar advertising campaign consisted of advertising in various forms of media, including online. So, what does this decision mean for businesses advertising on the internet?
In late September 2010, TPG launched a substantial and extensive advertising campaign in relation to its broadband Internet product with unlimited downloads know as “Unlimited ADSL2+”. The campaign was run in various different mediums including television, radio, print, billboard and internet advertising, at a total cost of ...