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Archive for the ‘Trade Practices Law’ CategoryACCC says, ‘”No, Harvey Norman!”Tuesday, November 20th, 2012 The Australian Competition and Consumer Commission has ruined Christmas for eleven Harvey Norman franchisees accused of misrepresenting consumer rights. On 19 December, when most people will be counting sleeps til Christmas, the franchisees will be in the Federal Court in Sydney as orders are made for progress of the case. ACCC says that the eleven retailers gave consumers false information about their rights when goods weren’t up to scratch. It says that staff rolled out old red herrings like:
Some of these statements can sometimes be valid in some circumstances. But where goods simply aren’t of reasonable quality when supplied, traders can’t use excuses to push complaining customers away. Australian law says they have rights to a remedy, and no store can limit or exclude them. A familiar story Of course, there have been no adverse findings against any of the eleven yet. But ACCC’s allegations have a familiar ring. Just last year, discount computer chain MSY was caught making up its own law on consumer warranties. According to MSY:
According to the Federal Court, they could pay a $203,500 penalty and submit to a five year court restraint for misleading consumers about their rights. ACCC: It’s a campaign ACCC has made no secret of the fact that it has these kinds of misrepresentations in its legal gun sights. “Consumer Guarantees has been identified as a national priority by ACL Regulators and is a matter of particular concern for the ACCC with more than 16,000 contacts from members of the public to the ACCC’s Infocentre so far this year” said its Chairman Rod Sims this week. And its website now states that “The ACCC is conducting a number of investigations into other large manufacturers and retailers for alleged misrepresentations of consumer guarantee rights in breach of the ACL.” And to prove the point, ACCC launched the same kind of legal action last month against Hewlett-Packard Australia Pty Ltd. A good website or policy is not enough Many businesses think they can cover off legal risk with paperwork. It’s true that a well drafted contract or a comprehensive trade practices compliance policy document is a key tool in managing risk. But they’re almost never enough, if they aren’t backed up in practical ways. Harvey Norman’s website has clear and accurate information about what remedies consumers are entitled to if goods are not satisfactory. If ACCC’s case is right, it means that the franchisees were operating in disregard of the information on their own group website. That would indicate a serious disconnect between what the group’s head office knows (ie that consumers have bedrock rights) and what’s filtered through to staff on the shop floor. And that kind of disconnect can be very expensive.  Tags: ACCC, ACL, Australian Consumer Law, Trade Practices, Trade Practices Lawyer ACCC takes action over Apple’s 4G iPad claimsTuesday, March 27th, 2012 The Australian Consumer and Competition has today reported that it is launching legal proceedings against Apple claiming that it is misleading consumers. The ACCC’s actions arises from Apple’s claims that the latest iPads are 4G. It has been reported that the new iPad is not in fact compatible with 4G services currently offered in Australia as they cannot operate on the frequencies that Telstra use to operate its 4G or LTE network. In its press release today, the ACCC said:
The matter is due to be heard for the first time before the Federal Court of Australia in Melbourne tomorrow.
Posted in General, IT Law, Trade Practices Law | Comments Off ACCC to appeal Google judgmentSaturday, October 22nd, 2011 The ACCC has announced that it intends to appeal the recent Federal Court decision which found that Google was not liable for misleading and deceptive conduct in publishing Adwords advertisements. In its recent press release the ACCC said:
On appeal the ACCC has indicated that it will be challenging this finding by the Court with respect to 4 advertisements. The ACCC also indicated:
This is a significant case as there is a lack of Australian case law on Google Adwords advertisements, which are now one of the most commonly used advertisement methods for Australian businesses, with some businesses spending thousands of dollars per week.
Tags: ACCC, Google, Trade Practices Law, Trade Practices Lawyer ACCC fails in legal bid to label Google ads misleadingThursday, October 6th, 2011 The ACCC has failed in its bid to have the Federal Court declare that the manner in which Google differentiates sponsored links to organic search results was misleading and deceptive within the meaning of the Australian Consumer Law. The ACCC had argued that by failing to adequately distinguish advertisements from search results, Google had engaged in misleading or deceptive conduct. While the Court failed to agree with the ACCC, Google has since changed the labeling of advertisements from ‘sponsored links’ to ‘Ads’ in line with comments by the Court, that the labeling was unclear, but not misleading and deceptive within the sense of the Australian Consumer Law. Tags: ACCC, Australian Consumer Law, Google, Trade Practices Law, Trade Practices Lawyer Optus hit with $5.26 million fineMonday, July 11th, 2011 Optus has been hit with a $5.26m penalty in the Federal Court, for falsely advertising broadband download quotas. The decision heralds a new level of risk in communications advertising in Australia. The clear rule is that high-powered headlines plus small print equals advertising danger. This bulletin explains:
What Optus advertised (a) In April 2010, Optus campaigned for a new range of ‘Think Bigger’ broadband plans. (b) Each plan included a large data allowance (120/150/170GB) divided into ‘peak’ and ‘off-peak’ entitlements eg the 120GB plan was advertised with 50GB peak usage and 70GB off-peak usage allowance. (c) The disclaimers stated: ‘Speed limited once peak data exceeded’. How the advertised plans really worked (a) When peak allowance was used, entire service was shaped to 64kbps for rest of month. (b) Shaping applied to remaining off-peak allowance as well. (c) So, for instance, if customer used whole 50GB peak allowance first, then entire 70GB off-peak allowance shaped to 64kbps. (d) But if off-peak was exhausted first, further off-peak MBs were deducted from peak allowance, and shaping applied when that was exhausted. How Optus defended the plans Optus said that ‘Speed limited once peak data exceeded’ was a sufficient explanation: Once your peak allowance is reached, speed is limited. Why ACCC took action ACCC disagreed that the disclaimer was a clear and proper explanation. It argued: (a) Public would assume that peak and off-peak entitlements were independent. (b) Public would not understand that exhausting peak use would result in off-peak speed shaping to non-broadband speed. What the court said and did in 2010 (a) The court agreed with ACCC. (b) Court said that ordinary people simply wouldn’t understand the full rules of the plans, based on the advertising. (c) Court particularly attacked ‘headline advertising’ where a powerful headline told one story and small print told a different story. (d) Said there was:
(e) 29 October 2010: Court ruled that advertising was deceptive. (f) 2 November 2010: Court banned Optus from repeating that kind of advertising for 3 years[1]. (g) 19 November 2010: Court ordered Optus to write to all affected customers offering remedies. (h) 8 December 2010: Court held a penalty hearing. What the court did on 7 July 2011 Announcing the result of the penalty hearing, the court ruled that Optus must pay the Commonwealth a pecuniary penalty of $5.26m. Why a $5.26m penalty is now possible (a) Before 2010, no financial penalty was possible under the law in a case like this. (b) In 2010, the Competition and Consumer Act[2] (‘CCA’) was amended to allow the court to impose penalties on a company of up to $1.1m per breach of certain sections of the CCA. That includes breaches of the law against misleading about ‘the quantity of services’. Other provisions that can attract penalties The new penalties are available for a wide range of breaches that communications providers should keep in mind. Here’s a non-exhaustive list: (a) misrepresentations that goods are of a particular standard, quality, value, grade, composition, style or model (b) misrepresentations that services are of a particular standard, quality, value or grade (c) misrepresentations that a particular person has agreed to acquire goods or services (d) misrepresentations that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits (e) misrepresentation that the person making the representation has a sponsorship, approval or affiliation (f) misrepresentation with respect to the price of goods or services (g) misrepresentation concerning the availability of facilities for the repair of goods or of spare parts for goods (h) misrepresentation concerning the need for any goods or services. Summary Obviously, communications advertising has just become more challenging. It’s a strong argument for having every advertisement checked by an expert in the area. [1] That doesn’t make it legal in three years. It means that, should Optus break the ban, it will incur even higher penalties. [2] As it is now called … it was then the Trade Practices Act. Tags: Federal Court of Australia, ISP, isp law, ISP Lawyers, MIsleading and Deceptive Conduct, Optus, telecommunications law, Telecommunications Lawyers, Trade Practices Law ‘Max Cap’ lands Optus in Hot WaterThursday, May 19th, 2011 The ACCC has fined Singtel Optus Pty Ltd $178,000 for misleading conduct arising out of its ‘Max Cap’ marketing campaign. The ACCC’s view is that the Optus’ Max Cap advertisements:
The advertisements at issue contained the Max Cap $49, which wasn’t a cap, but rather the minimum a customer would need to spend. In commenting on the conduct of concern to the ACCC, acting ACCC Chairman Mr Peter Kell said: “If you advertise a service as a ‘$49 Max Cap’ when $49 is the minimum that consumers have to pay, then you risk breaching the law by misleading consumers about the cost of the service,” and “Claims that a service allows consumers to call ‘anyone’ are likely to be misleading if the reality is that some types of calls are excluded“. All ISPs and Telcos should have a process in place to review advertisements, not only to ensure compliance with the Competition and Consumer Act 2010 but also the Telecommunications Consumer Protections Code. Tags: Competition and Consumer Act 2010, technology lawyers, Telco Law, Telecom Lawyers, telecommunications law, Telecommunications Lawyers More Posts Coming SoonTuesday, December 7th, 2010 We have more IT Law, Domain Law and Telecommunications Law posts coming soon. Watch this space. Tags: domain law, domain name law, IT Law, IT Lawyer, IT Lawyers, telecommunications law Fixed Line Wholesale Pricing Under ReviewSaturday, September 18th, 2010 The Australian Consumer and Competition Commission (ACCC) has released a draft report into the pricing model of fixed line telephony services, proposing radical price reductions, which is likely to see Telstra’s fixed line revenues fall even further. The ACCC has suggested a move away from the traditional wholesale pricing model based Retail Price less Retail Cost, instead the ACCC has suggested an alternative model:
The new model has suggested an across the board charge of $20 per month for line rental down from the two consumer and business rates that exist, while the ACCC has suggested a reduction of wholesale local call costs from 17c to 7c, a massive drop, which is likely to anger Telstra. Below we have extracted the draft pricing for the period 2011 to 2014: Draft indicative pricesFor ULLS services, the Bands relate to different geographical areas.
Tags: ACCC, Declared Service, telecommunications law, telecommunications lawyer, Wholesale Call Costs ACMA determination on premium SMS restrictionsWednesday, May 5th, 2010 Consumers will have the choice of barring all premium SMS from their mobile phones as of 1 July 2010, with the latest package of measures announced by the ACMA. The ACMA has said that the package has been created so that “…mobile users can feel confident they will only receive and pay for services they actually want”. In a meeting with senior representatives of mobile phone companies the ACMA will discuss the possibility of the introduction of a service where consumers can request quick and easy barring via SMS. Complaints to the Telecommunications Industry Ombudsman regarding premium SMS services have decreased by an astonishing rate of 50% following measures introduced by ACMA last year. As the ACMA is hoping that this trend will continue, it will be closely monitoring the industry over the next 12 months to ensure that consumer concerns are adequately being dealt with. Recent enforceable undertakings that the ACMA has accepted from Funmobile Australia Pty Limited, which included a payment of $55 000, emphasize the ACMA’s commitment to pursuing telcos which repeatedly operate in breach of the law. Industry has welcomed the new package as a further reinforcement of the existing suite of consumer protection measures included in the Communications Alliance Mobile Premium Services Industry Code C637:2009. Despite both consumers and industry receiving the package with a warm welcome, the telcos will be hit hard. In a quote published by Computer World, Warren Chaisatien, research director and principle analyst at Telstyle, says that although the rule will aid consumers who have unintentionally signed up to a premium services, it is likely to have a negative impact on telco revenues as the premium SMS market was worth approximately $250 million in 2009. Tags: ACMA, isp law, ISP Lawyers, Premium SMS, telco lawyer, telecommunications law, Telecommunications Lawyers, telo lawyers Happy Holidays – Seasons GreetingsSunday, December 27th, 2009 To all of our clients and visitors to our blog, we wish you seasons greetings and a safe and prosperous new year. Thank you for your support in 2009, and we look forward to working with you in 2010. Our office will be re-open on 11 January 2010. Stay tuned for our new IT Law, Telecommunications Law, Domain Law and general Commercial Law articles / posts. Tags: Commercial Law, domain law, domain name law, IT Law, telecommunications law | |||||||||||||||||||||||||||||||||||
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