Court rules for Optus in ‘End of Empires’ fight with Telstra
The latest round in the telcos’ battle over misleading advertising has been won by Optus, with the Victorian Supreme Court dismissing Telstra’s claims over the ‘End of Empires’ campaign this morning.
Optus’ out of home and online campaign created by their inhouse Yes Agency, ran in early May. The ads featured a phone box, clearly identifiable as a Telstra payphone, lying ruined in the desert with the headline: “Empires end. That’s what they do.” followed by a claim “the Optus Mobile Network has been ranked best overall in voice and data.”
Telstra won a court injunction in early May preventing Optus from showing the ad, claiming it misrepresented the state of the two mobile networks.
This morning, Justice Robson of the Victorian Supreme Court lifted the injunction and dismissed Telstra’s claim, finding: “Telstra has failed to establish that Optus has engaged in conduct that is misleading or deceptive, or likely to mislead or deceive in contravention of s18 of the ACL (Australian Consumer Law); or that Optus has made false or misleading representations as to its services as prohibited under ss 29(b) and (g) of the ACL.”
Optus managing director of product and marketing, Ben White said: “We’re very pleased with the outcome. We believe Australians should know that Optus offers them a real alternative with an award winning mobile network that delivers great value for customers. I’d also like to acknowledge our internal agency, Yes Agency, who developed the creative for this campaign.”
Telstra spokesperson Steve Carey told Mumbrella: “This is a disappointing decision and surprising given the judge’s original position.
“Regardless of any advertising by our competitors, the fact remains we offer our customers Australia’s largest and fastest mobile network and we connect millions more Australians than anyone else.”
The judgement is Optus’ second win this month, with the Federal Court last week ruling Telstra had engaged in misleading or deceptive conduct with the use of the word “unlimited” in some advertisements for its mobile network.
However on the same day as the unlimited mobile ruling last week, the Federal Court also ordered Optus Internet to pay $1.5 million for misleading customers about their transition from its cable internet services to the National Broadband Network.
The ongoing fight between telcos over misleading claims has drawn criticism from leading figures in the telco sector with industry newsletter Communications Day reporting overnight that NBN board member and founder of iiNet, Micheal Malone had called on the ACCC to ban the advertising of ‘unlimited’ plans.
“The ACCC has for many years repeatedly stated that it is simply unacceptable to make bold headline claims like ‘unlimited’ and then to bury important conditions or qualifications in the fine print – often taking enforcement action against fixed-line internet service providers who have used the term ‘unlimited’ in their advertising,” Comms Day reported Malone as writing in a letter to the regulator.
“Mobile phone providers have recently launched mobile plans advertised as ‘unlimited’. But these plans are far from unlimited, as the speeds are slowed or “shaped” to low speeds after data caps are exceeded.”
The first point seems fair – Optus deftly made it about performance, not size. And let’s face it, Telstra is getting a sticky reputation for catastrophic network failures of late.
On the unlimited (yet “shaped”) plan thing against Optus – that’s just inexcusable. I’m well informed that this precise scenario has been clearly outlined in their internal compliance training documents. Mainly as they got pinged for millions a few years ago.
It is a novice trap as old as telco advertising. No excuse – Optus (and others) should arguably have been pinged for more.
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The unlimited ruling went against Telstra, not Optus.
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