Optus customers given chance to opt out of misleading plans

Proposed corrective advertising campaign an act of "self-flagellation" and ACCC "triumphalism", claims Optus

Those who signed up to Optus’ ‘Think Bigger’ or ‘Supersonic’ broadband plans between 25 April and 15 October this year will be given a chance to terminate their contracts without additional fees, a letter to be sent to those affected will state.

The letter, which will form part of a corrective advertising campaign mandated by the Federal Court, will explain the court’s decision, and provided alternatives to the plans in the event the customer feels they were misled by the campaigns in question.

Presiding judge, Justice Nye Perram, ruled the ads in the original campaigns were misleading following a trial brought against it by industry watchdog, the Australian Competition and Consumer Commission (ACCC). The legal proceedings — first brought against Optus in September — questioned a total of 11 ads across online, print, television and billboards which advertised the cable plans were four times faster than “standard broadband”. The network is capable of downstream speeds of up to 100 megabits per second (Mbps) downstream, but this is capped to 64Kbps once the user reaches their monthly download quota.

The ACCC this week proposed Optus run a series of corrective advertisements, including television ads during prime time on subscription television, and on other times on free to air television on the channels the originals advertisements were shown. It proposed newspaper ads be shown in metropolitan newspapers twice a week for eight weeks - or a total of 16 ads in each requested paper - while the telco also run a 540x500 pixel pop-up on all websites Optus owned notifying visitors of the correction.

No mention was made of whether corrective advertisements would be displayed on billboards, where some of the original ads in question were shown, or to counter the flyers and letter drops also included in the original campaign.

However, Optus lead barrister, Steven Finch SC, slammed the watchdog’s submission as “self-flagellation” for the telco and an act of “triumphalism” for the ACCC which better showcased the watchdog’s successes in the proceedings, rather than properly notifying potentially affected customers. The television advertisements in particular, which would repeat a portion of the original ad along with a corrective disclaimer as a rolling screen, would fail to engage affected or potential customers, Finch argued.

“It is not directed to anyone who actually was influenced by the ads,” he said. “There is an ad presented in alarmingly funereal terms to a public from who there has been not one complaint about a contract entered into, not one complaint about the form of the ad.

“The actual correction, identification of the problem, explanation of reality and offering of alternative, [should] be directed to those who have actually signed up.”

While Finch argued the “bruise” of the original advertising had “long since faded”, ACCC lead barrister, Neil Williams SC, said the corrective ads would continue to have an effect, largely to dispel the impression that “high speed, high volume broadband cheaply”.

“Consumers or potential consumers who see corrective advertising will have cause to reflect; that is, corrective advertising is spell breaking for those drawn into the web by an effective original and visually impressive campaign, one that was in critical respect misleading.”

The watchdog conceded Optus not run the newspaper ads so frequently in cities where the original cycle of advertisements were at a lesser amount, such as in Adelaide and Perth where print ads were only published twice and once respectively.

Justice Perram did not settle on what final form the corrective advertising would take, but the letter campaign will likely go ahead.

Williams also pointed to the continuation of similar ads from Optus during the course of the proceedings. While they didn’t come into the scope of the court case, he said continued use of the moose as a central character would link viewers’ minds back to the original advertisements.

“The fact that there was a mutation in a sense means there hasn't been a cessation of that built on ideas, particularly in television,” he said.

In his decision, Justice Perram agreed with Williams.

“I am far from convinced either that Optus’ recent cessation is anything other than opportunistic or that it signals some newly obtained underlying comprehension of the need to avoid such tricky behaviour in the future,” the finding read.

Justice Perram ordered an injunction of three years on Optus for similar advertising as part of his decision handed down this week.

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