Trade Practices Commission v Optus Communications Pty Ltd & Anor [1996] FCA 116

Trade Practices Commission v Optus Communications Pty Ltd & Anor [1996] FCA 116

The advertisements for the Optus Freestyle Plan, by representing 'free local calls' on weekends up to $52 per month without clearly disclosing that mobile-to-mobile calls were excluded, were misleading or deceptive within ss52, 53(c), 53(e), and 53(g) of the Trade Practices Act. The fleeting disclaimers and subsequent steps did not sufficiently neutralise the false impression. The advertisements would have led a significant proportion of viewers, especially unsophisticated consumers, to believe that all local calls—including mobile to mobile—were free, thus breaching the Act.

Jurisdiction
Australia
Judgment Date
06 March 1996
Procedural Posture
Civil / Final Judgment
Outcome
Declaration of contravention and grant of injunctive relief; no corrective advertising ordered.
Legal Topics
['misleading or Deceptive Conduct' 'false Representations' 'corrective Advertising' 'injunctions' 'television Advertising' 'mobile Phone Services']
['trade Practices Law' 'consumer Protection' 'telecommunications Law'] ['misleading or Deceptive Conduct' 'false Representations' 'corrective Advertising' 'injunctions' 'television Advertising' 'mobile Phone Services']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether television advertisements for Optus Freestyle Plan were misleading or deceptive under ss52, 53(c), 53(e), 53(g) of Trade Practices Act 1974' 'Whether an injunction should be granted to restrain further misleading representations' 'Whether corrective advertising should be ordered']

Ratio Decidendi

The advertisements for the Optus Freestyle Plan, by representing 'free local calls' on weekends up to $52 per month without clearly disclosing that mobile-to-mobile calls were excluded, were misleading or deceptive within ss52, 53(c), 53(e), and 53(g) of the Trade Practices Act. The fleeting disclaimers and subsequent steps did not sufficiently neutralise the false impression. The advertisements would have led a significant proportion of viewers, especially unsophisticated consumers, to believe that all local calls—including mobile to mobile—were free, thus breaching the Act.

Court Disposition

Declaration of contravention and grant of injunctive relief; no corrective advertising ordered.

Orders

  • ['Declare that Optus contravened ss52, 53(c), 53(e), and 53(g) of the Trade Practices Act 1974 (Cth).' 'Order restraining Optus from further similar misleading representations unless accompanied by prominent disclosure of exclusions.' 'No order for corrective advertising.']