Optus customers that felt they were misled into signing up to the ISP's 'think bigger' and 'supersonic' broadband plans could exit their contracts without penalty, the ISP's lawyers said in the Federal Court today.
Affected customers would receive notification of the escape offer directly by mail and would also potentially be able to view it in corrective advertisements sought by the Australian Competition and Consumer Commission (ACCC).
However, the ISP claimed "there had been not one complaint from a contract being entered into" by a consumer, despite an undisclosed but allegedly sizable number of sign-ups to the plans.
The Federal Court this week found Optus' advertising campaign for the broadband plans to be "misleading and deceptive".
The Australian Competition and Consumer Commission (ACCC) today argued its case for the extent of corrective advertising it sought as part of a court order.
But Optus proposed limiting corrective advertising for its 'think bigger' and 'supersonic' broadband plans only to customers that signed up for the services, rather than engage in a broader campaign proposed by the ACCC that the ISP viewed as an "exercise in punitive self-flagellation".
The watchdog's barrister Neil Williams SC said that Optus' advertisements were "high impact, eye-catching and distinctive".
He argued that Optus should be forced to run corrective advertisements to the extent that the original campaign was run, including in primetime slots on subscription TV, in non-primetime free-to-air slots and in newspapers.
Williams argued that TV advertisements had a "lingering impression" in consumer's minds "that Optus offered a very fast broadband service very cheaply."
He said the impression could span "some two or three months, indeed even longer after a campaign has finished."
Corrective TV advertisements proposed included a "20-second [screen]... which we think sufficiently summarises the [corrective points to be made], followed by two seconds of the Optus logo."
Other corrective measures proposed by the ACCC allegedly included pop-up ads on all Optus web properties, an "A3 [sized] notice" in all Optus stores and a letter to customers with the heading "corrective notice of the Federal Court of Australia", rather than a personal greeting, according to the telco's barristers.
Advertising court win?
Optus lead barrister Steven Finch SC was critical of the ACCC's list of demands, which he claimed were designed to "grandstand and punish rather than to correct."
Finch argued that the response was akin to a product "that caused death", not one about the terms of a broadband plan.
He said that the proposed corrective TV advertising campaign "sought first to repeat confusion [in the offending advertisements], then to seek to so-called correct it by a densely-packed sermon."
Finch claimed that the corrective "sermon" proposed by the ACCC - which was "presented in alarmingly funereal terms" - would result in "20 seconds of dead air while the customer watches with bemusement while it scrolled across the screen."
He argued that such a campaign wouldn't reach "anyone who might have been caught out" by the original campaign and that it "may miss the point".
"We propose the actual correction be directed to those who've actually signed up," Finch said.
"We say, in the circumstances, that will be enough.
"[The ACCC's ad] isn't a correction. It's an advertisement of the ACCC's win in the proceedings. The TV advertisement shouldn't be ordered because it's ill-directed and potentially confusing".
That drew a rebuke from the watchdog's barristers.
"It's corrective and directed at consumers," Williams responded. "It has no mention of the ACCC."
Finch claimed that corrective newspaper advertisements were "further divorced from reality" and also argued against running pop-up ads on its website and corrective posters in Optus retail stores.
He argued that corrections should target those potentially caught out by the original campaign, not more broadly.
A decision was expected to be handed down by the Federal Court next week.