Optus Mobile Pty Ltd - s.87B undertaking

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Optus Mobile Pty Ltd (Optus) in relation to alleged misrepresentations about the amount and period of validity of data, calls and texts provided with certain prepaid products and services. Optus has admitted that its conduct was likely to have contravened sections 18 and 29(1)(g) of the Australian Consumer Law (ACL).

Details about the company

Optus is a supplier of telephone and internet services to consumers in Australia and offers various prepaid mobile broadband devices, prepaid mobile phones and prepaid mobile plans for sale (together, the Optus Prepaid Products).

Details about the conduct

Beginning in 2013, Optus advertised various promotions that offered consumers a certain amount of data, calls and/or texts valid for a specified period of time (the inclusions) from when they either activated or recharged the SIM card that was supplied with the purchase of an Optus Prepaid Product.

From 2015, Optus decided to change the inclusions that were provided upon activation or recharge of the SIM card supplied with the Optus Prepaid Products. These changes included reducing the inclusions, and/or reducing the length of time before the inclusions would expire. In some instances the inclusions were increased but the expiry period was reduced.

Consumers who purchased one of the Optus Prepaid Products before the implementation of these changes, but activated the SIM card after the changes, received the reduced inclusions and/or shorter expiry period. Optus did not notify these consumers about the changes or advise them that they should activate their SIM card before a certain date in order to receive the full inclusions and expiry that they purchased. These consumers therefore received less inclusions and/or a shorter expiry period than they were promised.

To address the ACCC’s concerns, Optus provided the ACCC with a section 87B undertaking that:

• for a period of three years it will not, in trade or commerce, reduce the amount of data and/or other inclusions advertised as available upon activation of a prepaid SIM card (including a prepaid SIM card bundled with another product) unless certain conditions have been met
• it will contact affected consumers and provide them with a credit
• in recognition of the loss to those consumers whom Optus is unable to provide redress, Optus will donate any money it is unable to refund to an appropriate organisation to be agreed with the ACCC
• it will publish notices in Optus and third party stores, and on the Optus website, informing affected consumers that they may be entitled to a credit
• it will update its compliance program and an internal staff template to ensure Optus considers its obligations under the ACL before updating or implementing similar promotions in the future.