The Australian Federal Court has ruled that Telstra advertisements that use the word "unlimited" are misleading and deceptive.
According to Justice Gleeson, the advertisements falsely convey the "representation that Telstra offers a mobile product or service that is unlimited in the sense that Telstra imposes no limitations on" the speed at which data can be downloaded, the volume of data that can be downloaded at unrestricted speeds, and one's ability to download data without interruption or delay.
The advertising campaign is question promotes Telstra's recently launched "endless data" plan where subscribers can access 40GB at full 4G speeds, but are capped to 1.5Mbps after.
The Telecommunications Consumer Protection code states that telcos must not "use the term 'unlimited' or an equivalent term in an unqualified manner when referring to usage, unless the ordinary use of the service in Australia is genuinely unlimited and not subject to exclusions".
Optus brought the court action against Telstra, specifically targeting the slogan "One word from Australia's best mobile network. Unlimited." Telstra has agreed to remove its ads, and has been ordered to pay the court costs incurred so far by Optus. Damages will be determined at a further hearing.
"We will comply with the Federal Court decision, which applies to only a small part of our overall advertising and promotional material for our mobile data plans," said a Telstra spokesperson. "We will carefully consider the judgment before deciding our next steps."
In addition to pulling advertising surrounding the plan, Telstra has hidden all links to its "unlimited data" plan on its site. However, at time of writing, the page for plan still exists and the sign-up button appears to work.
Today's ruling is the latest development in an advertising-related stouch between the two telcos: Telstra last week obtained an injunction from the Supreme Court of Victoria to prevent Optus from running ads that claim it has the best mobile network in Australia.
Vodafone, who launched its own "unlimited data plans" alongside Telstra says it "complies with all relevant advertising codes and initiatives to ensure our advertising contains the appropriate information so customers understand what [the company is] offering".
As with Telstra, Vodafone's unlimited plans have a fixed amount of data that can be used as at full 4G speeds, after which customers are able to continue using their service at 1.5Mbps.
"We have gone above and beyond to ensure that Vodafone's advertising of Unlimited plans is as clear as possible and the terms and conditions are clearly brought to customers' attention," said a Vodafone spokesperson. "This is supported by clear terms and conditions communicated across our advertising, website, retail stores, and customer care team."
"Today’s decision appears to be in relation to a very different situation in which the details of the offer were not brought to the customers' attention."
Optus has been trialling its own "unlimited" data plans, but has not made these publicly available. Optus' plans are however slightly different to those available on Telstra and Vodafone: instead of offering a fixed data-allowance followed by restricted speeds, Optus offers genuinely unlimited data for day-to-day usage, but restricts the speeds at which a customer can tether or stream video at to the same 1.5Mbps.
While Optus may have brought the action against Telstra, it was found guilty of the exact same TCP violation back in 2011, when the Federal Court ruled that Optus was misleading in promoting its broadband plans as unlimited. These plans were said to be unlimited, but customers had their speeds throttled after exceeding a specified download allowance.
Alex Choros
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