Optus prevails in Telstra suit over ‘Empires End’ ad
Telecommunications May 30, 2018 3:21 pm By Christine Caulfield | Melbourne

A judge has lifted an injunction against an Optus ad campaign after ruling that Telstra failed to make its case that the ‘Empires End’ campaign was misleading or deceptive.

Victorian Supreme Court Justice Ross Robson on Thursday dissolved the temporary injunction that forced Optus to pull the ad on May 16 and dismissed Telstra’s case.

“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 … the Australian Consumer Law,” Judge Robson said.

“Telstra’s pleaded representation is not one that is conveyed by the conduct complained of.”

Telstra had alleged the ad made a false and damaging claim about the superiority of Optus’ mobile network. The teleco claimed the advertisement — which has appeared online and on large digital banners in Victoria, New South Wales and Queensland — falsely represented to consumers that Optus was “now undisputedly operating a better mobile network overall than Telstra”.

The ad features an image of a telephone box half buried in desert sands with pyramids in the background, and the words, “Empires end. That’s what they do,” followed by the line: ‘The Optus Mobile Network has been ranked the best overall in voice and data’. In small print below this appear the words ‘By P3 Mobile Benchmark, Dec 2017.’

In dismissing the case Thursday, Judge Robson said that while the Optus ad conveys the representation that its mobile network is better than Telstra’s, it does not make the claim that it is undisputedly better.

“The representation that Optus’ network is undisputedly better than Telstra’s is not conveyed by the advertisement,” the judge said.

Optus managing director of product and marketing Ben White said the company was pleased with the ruling.

“We believe Australians should know that Optus offers them a real alternative with an award winning mobile network that delivers great value for customers.

A spokesman for Telstra said it was disappointed by the ruling.

“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 spokesman said.

The ad is the second version of an earlier ad that made the claim that Optus’ mobile network “is now best overall nationally’. That ad was pulled by Optus on May 4 after correspondence between Telstra’s solicitors at King & Wood Mallesons and Clayton Utz, acting for Optus.

According to the P3 report for 2017, it was a “neck-and-neck race” between Telstra and Optus, but that Optus won overall “with an advance of three points” over its rival.

Telstra argued that Optus won the ‘best in test’ award by three points out of a possible 1,000 points and that the ad’s representations, among them that Telstra’s “empire” had been toppled, could not be drawn from the report.

Optus contended that Telstra had made no tenable argument that the ad conveyed that message.

“At most, [the words and image] convey that Telstra is not destined always to occupy a position of pre-eminence,” the company said.

Telstra is represented by King & Wood Mallesons. Optus is represented by Clayton Utz.

The case is Telstra Corp. Ltd v Singtel Optus Pty Ltd.

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Christine Caulfield

Christine Caulfield has been a journalist for 18 years. She was most recently the Co-Managing Editor at US legal news publication Law360. Prior to that she worked as the County Court reporter for The Herald Sun. She is Co-Founder and Editor of Lawyerly.