Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134

Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 134

The Full Court held that each advertisement, viewed as an ephemeral television communication and as a whole, created the dominant impression that the consumer could obtain the featured ringtone, game or quiz opportunity as a one-off service at a one-off cost, not by entering an ongoing subscription with initial and recurring fees for bundled services. The small print and use of the word "subscribe" did not dispel that impression, and the double opt-in procedure did not cure the misleading conduct because the misleading publication had already induced the consumer's engagement and the later text operated in a confirmatory sequence. The primary judge therefore did not err in finding...

Jurisdiction
Australia
Judgment Date
14 September 2012
Procedural Posture
Appeal Concerning Contraventions of Ss 52 and 53(e) of the Trade Practices Act 1974 (cth) and Pecuniary Penalties / Appeal From Australian Competition and Consumer Commission V Global One Mobile Entertainment Limited [2011] FCA 393
Outcome
Appeal dismissed with costs.
Legal Topics
['misleading or Deceptive Conduct' 'false or Misleading Representations With Respect to Price' 'mobile Telephone Premium Content Services' 'television Advertising' 'pecuniary Penalties' 'double Opt in Procedure']
['trade Practices' 'consumer Law'] ['misleading or Deceptive Conduct' 'false or Misleading Representations With Respect to Price' 'mobile Telephone Premium Content Services' 'television Advertising' 'pecuniary Penalties' 'double Opt in Procedure']

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Procedural Posture

Appeal Concerning Contraventions of Ss 52 and 53(e) of the Trade Practices Act 1974 (cth) and Pecuniary Penalties / Appeal From Australian Competition and Consumer Commission V Global One Mobile Entertainment Limited [2011] FCA 393

Legal Issues

  1. 1 ["Whether the appellants' television advertisements conveyed that consumers would purchase a one-off ringtone, game or quiz entry at a one-off cost when the service was an ongoing subscription service with initial and recurring fees." 'Whether the double opt-in procedure dispelled any misleading or deceptive impression created by the advertisements.' 'Whether the advertisements contravened ss 52 and 53(e) of the Trade Practices Act 1974 (Cth).' 'Whether the pecuniary penalties imposed by the primary judge were affected by error or were unjustified in severity.']

Ratio Decidendi

The Full Court held that each advertisement, viewed as an ephemeral television communication and as a whole, created the dominant impression that the consumer could obtain the featured ringtone, game or quiz opportunity as a one-off service at a one-off cost, not by entering an ongoing subscription with initial and recurring fees for bundled services. The small print and use of the word "subscribe" did not dispel that impression, and the double opt-in procedure did not cure the misleading conduct because the misleading publication had already induced the consumer's engagement and the later text operated in a confirmatory sequence. The primary judge therefore did not err in finding...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' 'The appellants shall pay the costs of the respondent of and incidental to the appeal.']