The Double Opt-in Procedure
50 The primary judge found at [59] that once a responding person sent a text message of the required phrase to the number nominated in the relevant advertisement, a double opt-in message was sent to the mobile telephone number from which the text was sent. The double opt-in message sent to a responding person for the Justin Bieber Advertisement, as an example, said this as quoted at [59]:
FreeMsg: Hi! Reply YES 2 get ur order + get top games, apps tones & more! MobileActive subscription Help 1300886534. $6.60/6 days 2 x $6.60 to join. Unsub: reply out
51 The message, in this example, called for a text reply of "YES". At [61], the primary judge observes that it was not in dispute that at the time when the double opt-in message was sent to the responding person (and intended subscriber), that person was "given an explanation of the nature of the subscription service". The primary judge at [61] found:
If he or she were misled up to that point, for example, had understood that the prospective purchase was of a one-off service, that would no longer be the case; that is, the double opt-in procedure would remove that misapprehension.
[emphasis added]
52 The appellants contended before the primary judge as they contend on appeal in seeking to demonstrate error, that publication of the advertisements did not mislead or deceive a consumer of the service because an examination of the whole of the contextual integrated conduct shows that publication of the relevant advertisement was coupled with a computer-generated explanatory text sent to a responding person which required from that person a confirmatory acceptance by text message. Thus, segmenting the whole of the integrated conduct and focusing upon only the publication of the advertisement is said to misunderstand the required inquiry in determining whether the conduct contravenes any of the provisions of the Act relied upon.
53 At [65] and [66], the primary judge considers authorities dealing with the question of whether a subsequent explanation of the effect of an advertised offer, or other post-broadcast steps, might overcome anterior misleading or deceptive conduct arising out of publication of an advertisement which, when seen by relevant members of the consumer cohort, entices, induces or draws the consumer into a purchase transaction or other dealing. At [67], the primary judge observes and finds:
It is clear from these cases that conduct can contravene s 52 of the Act even if, ultimately, the consumer becomes aware of the true situation. However, each case must be looked at according to its facts. This is not a case where a consumer would be expected to examine the label of a product he or she was considering purchasing by reason of the identity of the manufacturer of the product. Here, the relevant conduct is the broadcast of each of the Advertisements in their totality. It is true that a prospective purchaser would be disabused of any misunderstanding by the double opt-in procedure but, if the Advertisements are misleading, that person would have already been misled.
[emphasis added]
54 At [68], the primary judge observes that where advertisements are directed by broadcast to members of a class, the inquiry is focused upon the hypothetical reasonable member of the class to whom the advertisements are addressed. At [68], the primary judge found that "the relevant class" for these advertisements is the "general public". At [68], the primary judge also observed that the parties accepted that at June 2009, "the number of mobile phone services in operation in Australia [that is, throughout the general Australian public] was 24.22 million". The primary judge also observed at [68] that the relevant inquiry to be undertaken involves these questions: What would each advertisement have conveyed to members of the class (general public)? And, would a significant number of this class be likely to have been misled or deceived? That formulation was refined at [69] by asking whether the misconception alleged to arise, or be likely to arise, is properly attributable to the ordinary and reasonable members of the class of prospective buyers of the advertised services. That class includes the gullible, the astute, the experienced and the inexperienced, and at [70] the primary judge said this:
I propose to consider the effect of the Advertisements on a reasonable adult watching the Advertisements. If such a person is likely to have been misled it follows, in the absence of evidence to the contrary, that someone under the age of 18 would also be misled.
55 The reference to someone under the age of 18 being misled was a reference to the Commission's contention that a number of prospective buyers of the service would have been under the age of 15 and especially so in relation to the Justin Bieber Advertisement. Nevertheless, the primary judge approached the class as a cohort comprised of reasonable adults watching the advertisement.
56 Having regard to the factors described by the primary judge at [71] (set out at [49] of these reasons) and the finding at [67] that the relevant conduct is the broadcast of each advertisement by which a consumer had "already been misled" before the double opt-in procedure became engaged, the primary judge concluded at [72]:
… I do not accept that the existence of a double opt-in procedure means that the consumer was not relevantly misled. Before the confirmatory opt-in procedure, the consumer had made a decision to enter the quiz, purchase the ringtone or purchase the game. … In order for the double opt-in procedure to operate, the misled person has taken action of a substantive nature, whether or not it ultimately caused significant detriment or financial loss. The double opt-in procedure did not necessarily provide a panacea for the consequences of a misunderstanding of the nature of the cost for obtaining the service, or indeed the fact that it was an ongoing service that was being obtained.
57 At [74], the primary judge further observed:
The double opt-in procedure is not the answer, as asserted by Global One and 6G, to the problem of viewers responding to the Advertisements and subsequently obtaining services for which they did not intend to apply.
58 The primary judge did not accept the contentions of the appellants that to the extent that the advertisements might have conveyed a misleading impression at the moment of publication, that impression was so insubstantial and transient in nature and, in any event, so qualified by an assessment of the practical consequences and impact of the conduct that publication was not likely to be misleading or deceptive in any "commercially significant sense".
59 At [77], the primary judge accepted that the circumstances reflected in the conduct in issue did not engage the principles seen in cases where the representations are designed to draw a consumer into a "marketing web". At [77], the primary judge said this:
The nature of the service being offered in the Advertisements means that, notwithstanding the reference to a help phone number and, for some of the Advertisements, a website in the small written text at the bottom of the screen, the only source of information available to the consumer before making the decision to send the text message was contained in the Advertisements themselves. That is, unlike the "marketing web" cases, there was no store for the consumer to visit, nor even any method of contact available to the consumer to find out more about the service. Given that the reasonable consumer would be unlikely to have written down the help number or the website in the written text in the time available during the screening of each of the Advertisements, this is not a factor that assists Global One or 6G.
60 As to the characteristics of the reasonable consumer, the appellants contended before the primary judge as they contend on appeal in seeking to demonstrate error that the reasonable consumer is a person interested in acquiring the service and therefore necessarily interested in the cost of the service. Such a person would, it is said, look to the advertisements expressly for the purpose of finding out the cost of taking up the service. Such a person would have sufficient time to read the displayed writing in order to identify the cost and the subscription nature of the service. Moreover, the appellants assert that the reasonable consumer could not reasonably have expected to receive the content for nothing more than the cost of sending a text message.
61 Taking the advertisements in context, the appellants asserted before the primary judge that no contravention of s 53(e) arose as no representation was made of a one-off cost in the advertisement; the representations as to cost are not identified; the reasonable consumer would expect to pay something for the ringtone or game; nothing in the advertisements entitle the consumer to nominate the one-off cost; and a consumer, acting reasonably, who wished to determine the cost for the relevant service, would note the initial joining cost and ongoing subscription fee recited in the displayed writing.
62 At [79], the primary judge observed that these submissions as to cost seemed to ignore other reasonable responses to the advertisements which included a position a reasonable member of the class might adopt to the effect that the cost of entering the quiz or obtaining the ringtone or game was the cost of the text message. The primary judge observed that this approach was "admittedly most plausible in relation to the cost of entering the quiz". Another response at [79] included that if the consumer did not consider what the cost would be, the consumer would "assume a reasonable cost for a one-off provision of a product or service - not that it was a subscription service with a sign-up fee and a daily or weekly fee that is not commensurate with the cost of the offered product or service alone".
63 At [80], the primary judge seemed to accept the Commission's proposition that there is a likely class of people within the general class who are misled by the advertisements "but do not text the number and therefore do not receive the subscription request message". Those persons "are not disabused of any misapprehension engendered by the Advertisements".
64 At [81], the primary judge made this finding:
I accept that, with the possible exception of the Quiz Advertisements, the viewers of the Advertisements would ordinarily have appreciated that the ringtones and games were not being provided for free. However, it is unlikely that they would have appreciated that, if they sent the SMS, the cost incurred was not simply a cost for the provision of the ringtone or game but a recurring cost, that cost being not just for the provision of the content but to sustain a subscription for that content and other services.
[emphasis added]
65 At [82], the primary judge found:
I accept that if the written text were read and understood by the consumer, there would be no relevant misrepresentation. The point is, however, that a consumer would be unlikely to read any of the text, let alone all of it, in the time of the Advertisements in circumstances where the size of the text was small and the consumer's attention would be focussed on the visual images and the voiceover. The inclusion of a written disclaimer does not dispel the effect of the voiceover and the general nature of the Advertisements, which convey a clear message that a one-off text will purchase the offered product or, in the case of the Quiz Advertisements, put the viewer in a position of being able to win the offered prize.
[emphasis added]
66 At [82], the primary judge further found:
A first time viewer is unlikely to have regard to the writing at all. A repeat viewer, or one that is more astute, would have sufficient time to read the writing, which is legible and capable of being read, but this would require concentration and a disregarding of all the other messages, both visual and aural, being conveyed by the Advertisements. That is unlikely unless the viewer's attention were directed to the written disclaimer. Such a viewer or one who was already aware of the possibility that more than the quiz/ringtone/game was being offered, or who was particularly astute, might read the writing and ignore the other messages. A reasonable viewer would not, in my view, do so.
67 At [83], the primary judge made these further findings concerning all of the advertisements:
Even if a particular consumer were aware and noticed the words "subscribe" or "subscription" in the Advertisements, a reasonable consumer in those circumstances would, in my view, still understand that he or she was paying for a specific product rather than for an ongoing subscription service for additional ringtones or games and other products. This is perhaps most clear in relation to the Quiz Advertisements. It is highly unlikely that a reasonable viewer would consider that the one-off chance of entering into a quiz would give rise to an open-ended subscription service. A person entering the quiz does not understand from the Quiz Advertisements that any opportunity is being offered other than that single opportunity to win the $100,000 prize. Further the Justin Bieber Advertisement makes no reference to a consumer receiving any ringtone other than Justin Bieber's song One Time, or any other service. The voiceover in the Doodle Jump Advertisement says 'subscribe to Doodle Jump, the mobile game'. It does not suggest that the consumer will receive any other product. The voiceover in the Space Invaders Advertisement states 'subscribe and get the world's most famous video game on your mobile'. It too does not suggest the consumer will receive any other product.
[emphasis added]
68 At [84], the primary judge found that the considerations described at [79] to [83] of her Honour's reasons (described at [62] to [67] of these reasons) apply to a consideration of the contended contraventions of ss 52, 53(aa), 53(c) and 53(e).
69 At [85], the primary judge found that each advertisement is misleading, and likely to mislead, a viewer in contravention of s 52 of the Act.
70 As to the representation, the primary judge found at [86] that:
The Advertisements represent that a consumer responding to the Advertisements by text message will be charged no more than a one-off cost for a single mobile phone ringtone, video game or quiz.
71 At [86], the primary judge found that the true fact is that:
… the consumer who does respond and who moves through the double opt-in procedure signs up to a subscription service and is then charged an initial subscription fee and a weekly or daily subscription fee which is not terminated until the consumer sends a subsequent SMS.
72 At [87], the primary judge further finds as to the representation:
The representation in each of the Advertisements is that the price, although unstated, will only relate to the provision of one service when in fact the price relates to the provision of numerous services throughout the subscription.
[emphasis added]
73 At [87], the primary judge finds that the making of this representation "is false, or at the least misleading, and constitutes a contravention of s 53(e)", by reason of the observations made about the advertisements by the primary judge.
74 At [88], the primary judge concludes that no contravention of ss 53(aa) or 53(c) of the Act had been established by the Commission. The primary judge observes that these subsections "are not, in my view, applicable to the representation made in the Advertisements" [emphasis added].
75 Accordingly, the primary judge made the following declarations on 15 June 2011 (together with related injunctive relief):
THE COURT
Declarations
1. Declares that [Global One], from 14 February 2011 [which ought to have read 14 February 2010] to 22 May 2010, while engaged in trade or commerce, contravened ss 52 and 53(e) of the Trade Practices Act 1974 (the Act) by causing an advertisement promoting mobile telephone premium content services (Content Services) (by offering the song "One Time" by Justin Bieber as a mobile phone ringtone) to be published on television (the First Advertisement) which represented that any consumer responding to the First Advertisement by sending an SMS message would purchase a one-off service at a one-off cost when in fact the consumer was subscribing to a service with an initial sign-up fee and an ongoing subscription fee.
2. Declares that [6G], while engaged in trade or commerce, contravened ss 52 and 53(e) of the Act by causing:
a. an advertisement promoting content services (by offering entry into a mobile phone quiz game) to be published on television from 7 March 2010 to 17 April 2010 and from 30 May 2010 to 12 July 2010 (the Second Advertisement);
b. an advertisement promoting content services (by offering the Space Invaders game to consumers on their mobile phone) to be published on television from 21 March 2010 to 24 April 2010 (the Third Advertisement); and
c. an advertisement promoting content services (by offering the Doodle Jump game to consumers on their mobile phone) to be published on television from 25 May 2010 to 12 July 2010 (the Fourth Advertisement);
each of which represented that any consumer responding to the particular advertisement by sending an SMS message would purchase a one-off service at a one-off cost when in fact the consumer was subscribing to a service with an initial sign-up fee and an ongoing subscription fee.
76 By the Notice of Appeal dated 6 July 2011, Global One contends that the primary judge fell into error in concluding that in causing the broadcast of the Justin Bieber Advertisement a contravention of ss 52 and 53(e) arose. Global One contends that the primary judge erred in determining the contended contraventions by reference only to the content of the Justin Bieber Advertisement rather than by reference to the whole of the process including the double opt-in procedure by which Global One offered the service to consumers. Global One also contends that even by reference only to the content of the advertisement, the primary judge erred in concluding that Global One engaged in a contravention of s 52 or made a false or misleading representation with respect to the price of the subscription service within the meaning of s 53(e).
77 The same contentions are advanced on appeal by 6G in relation to each of the other advertisements.
78 The appellants summarise their submissions on contravention in this way.
79 First, even considered on their own, none of the advertisements were misleading or deceptive. Furthermore, the primary judge's reasoning to the effect that a one-off service was being offered, even if correct, did not apply to the quiz advertisements.
80 Second, even if any one of the advertisements, considered in isolation, was misleading or deceptive, the conduct of the appellants should have been judged by reference to the whole of the sale process including the double opt-in process (and text messages) and if this had been done, on the Commission's concession and the findings of the primary judge, the conduct of the appellants judged by reference to the whole of the sale process could not be considered to be misleading or deceptive.
81 Third, even if the advertisements were misleading or deceptive, the penalties imposed by the primary judge were unjustified in their severity. In particular, the penalties imposed failed to give adequate weight to the circumstance that due to the double opt-in procedure, no reasonable consumer who actually purchased the services was, or could have been, misled.
82 The question of pecuniary penalty is addressed later in these reasons.
83 Having had the benefit of looking repeatedly at each of the advertisements we make these observations about them.
84 First, repeated viewing of the advertisements for the purpose of seeing the images, hearing the voiceover and examining each of the component parts of each advertisement, pausing each advertisement to be better able to read and absorb the text, and making a deconstructed assessment of the relationship between those component parts is an entirely artificial analytical exercise. The primary judge rightly described the broadcast of the advertisements by television as an ephemeral communication to a consumer. The advertisements are transient communications that leave a dominant impression in the mind of a consumer. A consumer cannot turn to a fixed reference point to check or re-check messages conveyed by the advertisement. The consumer must deal with the cognitive cues triggered by the dominant impression the advertisement makes in the space of time the advertisement is screened.
85 Second, the consumer is drawn to the medium of television to watch the program not the advertisement. The advertisement in one sense is a distraction from the primary focus of the consumer in choosing to watch a particular program. Of course, advertisements are designed to capture the attention of the viewer in the periods when the program is broken by the period of the advertisements. In the appellants' submissions reference is made in respect of each of the advertisements to the "featured" component of the advertisement. That there is a featured component is immediately obvious upon viewing each advertisement. No doubt, the featured component of the advertisement is designed to attract the attention of the viewer to the subject matter of each advertisement. The viewer is drawn to the featured component and engages with it. Obviously enough, during the course of engaging the viewer through the featured component of the advertisement, the advertiser seeks to convey a range of information. The method by which that might be done, the content of the information and the extent to which that information is actually brought to the attention of the viewer in the context of the attention the featured part of the advertisement commands, determines the dominant impression left upon the mind of the consumer.
86 Third, in the case of the Justin Bieber advertisement, the advertisement prominently features a very popular young artist singing a popular song. It depicts excited responses to the artist from followers or fans. It has a voiceover which in excited or emphatic terms encourages viewers to take up the opportunity or prospect of having, as a ringtone on their mobile phone, the Justin Bieber song One Time. The dominant impression of the advertisement is that by responding by text to the number displayed and flashing on the screen (as the key information to be remembered), the person can take up that opportunity. Although the word "subscribe" is used in the advertisement, a viewer acting reasonably could well understand that term as simply meaning "take up the opportunity" to obtain that song as a ringtone rather than a "subscription" for that ringtone and other services comprised of other music, videos, games and other things. The excited voiceover at the outset invites the viewer to subscribe for something, and that thing is said to be, "subscribe for One Time ringtone". The text number for responses is then given, and what will result from doing so, is immediately described as "get Justin Bieber's new hit on your mobile today". The voiceover does not say "get Justin Bieber's new hit and other music, videos, games plus more" by subscribing. Nor does it say: To get Justin Bieber's new hit song One Time you must subscribe for additional music, videos, games plus more". If the voiceover had gone beyond the virtue of "[getting] Justin Bieber's new hit on your mobile today", a reasonable consumer within the relevant field, might perhaps have thought that Justin Bieber's new hit was but one part of a music and entertainment subscriber plan. In fact, the consumer cannot get just "Justin Bieber's new hit on [his or her] mobile today" at all.
87 That is not what emerges from the dominant impression of the advertisement.
88 Fourth, we agree with the primary judge that in relation to the Justin Bieber advertisement the subscription details appear in small print and that the viewer is inevitably drawn to the images of the popular artist on the screen and the excited language of the voiceover. We also agree that it would be easy to miss or disregard the writing on the bottom of the screen and that if the viewer's attention is adequately brought to it, it is highly unlikely that the viewer would read and absorb it rather than be drawn to and absorb the images of the featured attraction and the voiceover.
89 We also agree that the advertisement, taken as a whole, is directed to the featured component and a statement about the way in which the particular ringtone might be obtained. The dominant impression of this ephemeral advertisement is that by sending an SMS message to the advertised number the consumer can take up the opportunity to have Justin Bieber's song as the ringtone for the consumer's mobile phone at a cost which does not involve an ongoing subscription cost for that opportunity or a subscription (and thus also a subscription cost) for bundled other music, videos, games or other things.
90 Put simply, the advertisement featuring Justin Bieber's song as a ringtone operates as a hook to induce a consumer to respond to the advertisement and sign up for it in circumstances which actually involve an ongoing subscription for that ringtone and other music, videos, games or other things, which is not made plain by the dominant impression the advertisement leaves on the mind of a consumer acting reasonably.
91 As to the Doodle Jump and Space Invaders Advertisements, the same impression is given by these advertisements as that given by the Justin Bieber Advertisement. Each advertisement is accompanied by an excited voiceover that gives featured emphasis to the consumer's opportunity to take up and be able to play on their mobile phone the particular game "Doodle Jump" and the particular game "Space Invaders".
92 We agree with the primary judge's observation that each of these advertisements gives the strong impression by their manner and form of presentation that a particular feature is being presented coupled with a particular opportunity: You can have this song as a ringtone; You can have this game to play on your mobile phone. The essential impression is one of offering a particular feature not a feature bundled with other things.
93 We agree with the observations of the primary judge that it is unlikely that a consumer would have appreciated that if they sent an SMS to the advertised flashing number in response to the advertisement, the cost incurred of acquiring the featured thing was not simply a single cost for that thing (ringtone or game) but a recurring or subscription cost for the featured thing, and also a subscription for other services. We also agree with the observations of the primary judge that a consumer would be unlikely to read and absorb, in the course of the publication of the advertisement, the text which is said to bring to the attention of the consumer all of the relevant matters. We agree that in circumstances where the size of the text displayed on the screen is small and the thrust of the advertisement is to focus the consumer's attention on the visual images reflecting the featured opportunity, that is, the particular ringtone or game, the clear message conveyed by the Justin Bieber, Doodle Jump and Space Invaders Advertisements is that a responsive text will result in a purchase of the offered product not a subscription to that product let alone a subscription to that product coupled with weekly charges for bundled other products.
94 In the case of the Quiz Advertisements, the feature of each advertisement is a consumer's opportunity to participate in the possibility of winning $100,000 by responding to the particular question. We agree with the primary judge that the strong impression conveyed by the quiz advertisement is that a consumer is given a single opportunity to be in the pool of persons responding to the quiz question which carries with it the opportunity to win a $100,000 prize. We agree with the primary judge that the quiz advertisement does not convey an impression that the consumer is being offered an opportunity to take up a subscription with enduring weekly subscription charges for ongoing participation in multiple quiz questions over time. The advertisement effectively says: Here is your chance to be in the mix for the possibility of winning a large prize and you can do that by answering this question and responding to the text number now appearing on the screen.
95 The simple fact is that each advertisement is plainly designed to operate as a hook to induce a consumer to respond to the advertisement and sign up for a particular featured opportunity in circumstances which actually engages an ongoing subscription for that opportunity and a subscription for bundled other offerings, which is not made plain by the dominant impression the advertisement leaves on the mind of an ordinary consumer acting reasonably in responding to the advertisement.
96 The real question is whether the double opt-in procedure operates in such a way that the misleading impression created in the mind of an ordinary consumer acting reasonably arising out of having seen each advertisement, is dispelled by the particular sequence of exchanges put in place by the appellants. That sequence involves attracting the responding consumer so as to provoke a text message to the flashing number on the screen. A computer-generated response is then sent to the responding consumer which seeks confirmation from the consumer of his or her acceptance of the service by asking the consumer to send a text "YES" or a particular phrase to a particular number. The appellants contend that the quality of their conduct can only be determined by properly taking into account this sequence of exchanges. They say that the consumer is again told of the subscription quality of the service, the cost and the recurring cost and in the face of that information the consumer, in effect, has to say yes or no.
97 There are two particular difficulties with this approach.
98 First, we agree with the primary judge that the essential conduct is publication of the advertisement because it is publication by broadcast that seizes the attention of the consumer and provokes the consumer's engagement with the offering. That publication is misleading. Moreover, it is plainly misleading. Each step along the continuum after that point involves a consumer who has been misled. Second, the computer-generated response to the consumer responding to the advertisement has the character of operating as confirmation to the consumer that he or she is recognised by the service provider as a person who wants what was offered in the advertisement, namely, the particular ringtone, the particular game or an opportunity to answer a particular question which might throw up the chance of winning a $100,000 prize. The consumer responds so as to confirm the choice already made on the basis of a misleading advertisement. The consumer is not making a fresh evaluation. Once the consumer sees that the service provider has recognised that the consumer is a person who wants what was offered in the advertisement, the consumer gives the necessary short confirmatory response by text of either "YES" or the relevant phrase and the acceptance of the advertised service offering occurs.
99 In that sense, there is no basis for concluding that the post-publication steps in the double opt-in continuum dispels the misleading or deceptive conduct arising out of publication of the advertisements.
100 The issues in relation to cost are the subject of specific findings by the primary judge at [86] as to representations. As already mentioned the primary judge found that each advertisement contains a representation that a consumer responding to one of the advertisements will be charged "no more than a one-off cost for a single mobile phone ringtone, video game or quiz", and at [87] the primary judge found that each advertisement contains a representation that the price, although unstated, will only relate to the provision of one service. Neither representation was found to be true for the reasons already discussed.
101 The appellants contend that none of the advertisements contains an incorrect representation as to cost. In particular, no representation is made to a consumer that the consumer will incur a one-off cost in taking up the offered service. Nor is there an express representation that a consumer will be charged no more than a one-off cost for a single mobile phone ringtone, video game or quiz. Nor is there a representation that the price a consumer will be required to pay should the service be taken up is a price that only relates to the provision of one service.
102 The appellants say that the Commission has been unable to point to any express representation in any of the advertisements to these effects and that in order for the primary judge to find representations the subject of the findings at [86] and [87] the primary judge has relied upon unstated implied representations which are inconsistent with the express writing displayed on the screen and the express information in the computer-generated response to a consumer responding to the advertisement.
103 In the course of oral argument, counsel for the appellants put the contention in this way (at T 8, ln 36): "the key part of our argument comes down to the observation that absence of reference to something is not a representation that the negative exists".
104 The difficulty however is this.
105 Whilst it is true that the small writing displayed on the screen setting out the joining cost and the weekly recurrent cost until cancellation by text is correctly stated (and correctly stated in the computer-generated response to a consumer's text); no express representation is made that the service offering involves a one-off cost or once-only cost; and no express representation is made that only the featured ringtone, game or quiz question opportunity comprises the service offering and no other subject matter, the dominant impression made by each advertisement by the images, voiceover and manner of presentation of each advertisement is that a featured thing is offered or pushed at the consumer, and the opportunity to take up that particular feature might be seized by immediately texting a response to the flashing number. Correspondingly, the reasonable consumer would expect there to be a cost for taking up the feature. However, two factors are important. First, since the consumer has seen a particular single feature extolled in each advertisement, the consumer acting reasonably could well think that the corresponding cost is a single cost for a single thing, not a continuing weekly subscription cost until cancellation. Second, the dominant impression of the advertisement is that the cost is a small single cost for a single thing and the consumer is encouraged by the advertisement to believe that the feature might be taken up by simply responding by sending a text to the flashing number.
106 The misleading quality of the advertisement, on the question of cost, is the failure of the advertiser to draw the consumer's attention to the true nature of the recurrent subscription cost for the feature and other things bundled with the feature. Incorporating small but accurate text into the advertisement does not have the effect of dispelling the plain and dominant impression created by the advertisement.
107 The appellants also contend that the advertisements are neither misleading nor deceptive on the footing that the relevant class is a cohort of consumers interested in taking up the relevant service and the members of that cohort are astute to the use of such features and related other ringtones, video games, quizzes and various amusement applications for mobile phones such that they would be looking for the cost of the application. They would seek out the small writing and look to the information on cost rather than act on simply the broadcast of each advertisement.
108 Whether impugned conduct conveys the making of the representation is always a question of fact to be determined having regard to all of the contextual circumstances within which something was said or done. When that assessment is being made in the context of conduct said to involve representations to the public at large (or a section of the public) such as prospective buyers of ringtones, games or similar applications, ss 52 and 53(e) contemplate the effect of the impugned conduct on reasonable members of the relevant class of buyers (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 per Gibbs CJ at 199) or ordinary members of that class (Parkdale per Mason J at 204-205) ("Parkdale"). In order to test whether a misconception has arisen or might arise among members of the relevant cohort by reason of the impugned conduct, the inquiry is to be made notionally of the hypothetical individual excluding "assumptions by persons whose reactions are extreme or fanciful": Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [105] ("Campomar"). The question is, "whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary and reasonable members of the classes of prospective purchasers": Campomar at [105]. In determining whether a contravention has occurred, the focus of the inquiry is whether a not insignificant number within the class or cohort have been misled or deceived or are likely to be misled or deceived by the conduct, whether in fact or as a matter of inference: Hansen Beverage Co v Bickfords (Aust) Pty Ltd (2008) 171 FCR 579 at [46], per Tamberlin J and at [66] per Siopis J; ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 380 and 381 per French J. In ConAgra, French J observed that the notion of "insignificant" identified the threshold of public awareness below which such conduct is not misleading. His Honour observed that the term "insignificant" in this formulation is thus "normative" but not inappropriate in understanding the scope of the prohibition upon misleading conduct which is directed to consumer protection. The issue, however, is not whether the impugned conduct simply causes confusion or wonderment but whether the conduct is or is likely to mislead or deceive: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 201 per Deane and Fitzgerald JJ. The proper approach to determining whether a person has engaged in conduct in contravention of ss 52 and 53(e) involves normative considerations of whether a not insignificant number of persons within the cohort being ordinary or reasonable members of the class of prospective purchasers would be or would be likely to be misled by the impugned conduct: Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 at [203] - [208]; National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 61 IPR 420 at [23], [70] and [71].
109 It is also important to appreciate that this case is not a product get-up case. It bears no relationship to a case like Parkdale in which consumers had an opportunity to closely examine an article of furniture retailing at a price of $1,500 and prominently displayed on a showroom floor where the consumer could look closely at labels and tags which might have had the effect of dispelling, upon reasonable examination of the physical article, first impressions of similarity between particular products.
110 The primary judge properly identified the principles to be applied in determining whether the contended contraventions had been made out. No error is demonstrated.
111 In this case, the advertisements extol the virtue of a mobile phone user taking up the opportunity to have Justin Bieber's song as the ringtone for his or her mobile phone or the opportunity to be able to play a computer game exhibiting the features of the Doodle Jump or Space Invaders games, or the possibility of participating in an answer to a question which might put the mobile phone user in the mix for the possibility of winning a substantial quiz prize. The relevant class or cohort for the purposes of determining the effect of the impugned conduct is members of the general public who subscribe for mobile telephone services and whose interest is likely to be attracted by advertising directed to features for mobile phones such as ringtones, games, participation in competitions and like applications, and to the possibility of taking up one of the advertised applications. Such a consumer within the cohort would expect there to be a cost associated with taking up one of these applications. However, a reasonable member of the class, or more particularly, a not insignificant number within the class or cohort, would be likely to act on the footing as described at [106]. A not insignificant number within the class or cohort acting reasonably, would not be likely to seek out the pricing information in the way contended for by the appellants but would be likely to act in the way described at [106].
112 It follows that no error has been demonstrated in the findings of the primary judge in relation to the contraventions of ss 52 and 53(e).