Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited [2011] FCA 393

Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited [2011] FCA 393

Each of the respondents' advertisements was misleading or likely to mislead in breach of s 52 of the Trade Practices Act 1974 (Cth), as they gave the dominant impression that the consumer would be charged a one-off cost for a specific product or opportunity, when in fact it was for a recurring subscription service with ongoing fees. The double opt-in process did not cure the initial misleading effect. The advertisements also contravened s 53(e) by making false or misleading representations as to price, but not ss 53(aa) or (c). Declarations, penalties, and costs are warranted; quantum assessed having regard to company circumstances, deterrence and relevant factors.

Jurisdiction
Australia
Judgment Date
21 April 2011
Procedural Posture
Civil / Final Judgment (liability and Penalty)
Outcome
Judgment for the applicant with findings of contravention of s 52 and s 53(e) of the Trade Practices Act; declarations to issue; penalties imposed; costs to applicant; final orders to be formulated following further submissions.
Legal Topics
['misleading or Deceptive Conduct' 'false or Misleading Representations' 'television Advertising Compliance' 'pecuniary Penalty' 'injunctions' 'compliance Programs']
['trade Practices' 'consumer Law'] ['misleading or Deceptive Conduct' 'false or Misleading Representations' 'television Advertising Compliance' 'pecuniary Penalty' 'injunctions' 'compliance Programs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Final Judgment (liability and Penalty)

Legal Issues

  1. 1 ["Whether the respondents' television advertisements constituted misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth)" 'Whether the advertisements made false or misleading representations as to price, standard, quality or benefits under s 53(aa), (c), and (e) of the Trade Practices Act' "Relevance and adequacy of the 'double opt-in' procedure to remedy any misleading impression" 'Appropriate relief including declarations, injunctions, compliance programs, and pecuniary penalties']

Ratio Decidendi

Each of the respondents' advertisements was misleading or likely to mislead in breach of s 52 of the Trade Practices Act 1974 (Cth), as they gave the dominant impression that the consumer would be charged a one-off cost for a specific product or opportunity, when in fact it was for a recurring subscription service with ongoing fees. The double opt-in process did not cure the initial misleading effect. The advertisements also contravened s 53(e) by making false or misleading representations as to price, but not ss 53(aa) or (c). Declarations, penalties, and costs are warranted; quantum assessed having regard to company circumstances, deterrence and relevant factors.

Court Disposition

Judgment for the applicant with findings of contravention of s 52 and s 53(e) of the Trade Practices Act; declarations to issue; penalties imposed; costs to applicant; final orders to be formulated following further submissions.

Orders

  • ['Respondents to submit an agreed form of orders to implement the judgment by 12 May 2011, or each to submit proposed orders with supporting submissions by that date.' 'Pecuniary penalty of $150,000 against Global One for the Justin Bieber Advertisement.' 'Pecuniary penalty of $75,000 against 6G for each of the Quiz...