ACCC Takes Internet Providers to Court Over Allegations of Misleading NBN Speed Claims

Thursday 25 June 2020 @ 11.35 a.m. | Legal Research | Trade & Commerce

The Australian Competition and Consumer Commission (“ACCC”) have announced in a media release that they have instituted proceedings in Federal Court against Dodo Services Pty Ltd (“Dodo”) and Primus Telecommunications Services Pty Ltd (“iPrimus”), which are both owned by Vocus Group (“Vocus”), alleging the companies made “false or misleading claims about the NBN broadband speeds their customers could achieve during busy evening hours”.

Under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2020 (Cth)), service providers must not make false or misleading representations that services have certain performance characteristics.


The ACCC alleges that the misleading activity took place between March 2018 and April 2019 when Dodo and iPrimus made false or misleading claims on their websites about the internet speeds consumers could expect if they signed up to their NBN broadband services in prime-time evening hours between 7pm and 11pm. 

According to ABC News, in August 2017, the ACCC published its Broadband Speed Claims Guidance to assist providers in making claims about broadband performance. The ACCC alleges the “testing methodology” used by Dodo and iPrimus was not consistent with that Guidance, as it “did not maintain a randomly selected consistent test sample over the test period”.

Comment from the ACCC

The ACCC Media Release reports that since February 2019, the ACCC’s Measuring Broadband Australia Program (“MBA”) has shown Dodo and iPrimus’ broadband speeds have consistently performed towards the lower end of the nine NBN providers measured and reported on.

ACCC Chairman Rod Sims said:

"The ACCC will argue that Dodo and iPrimus used a fundamentally flawed testing methodology, developed by Vocus, which was not a reasonable basis for their advertising claims about certain typical evening speeds. It is alleged that the testing methodology determined the 'typical evening speed' claims by using only the daily 75 fastest speeds observed across Vocus' entire network in the busy period, excluding slower speeds where a connection was more likely to be impacted by congestion."

Mr Sims said “consumers need reliable broadband speed information in order to decide which provider to get an NBN service from and how broadband speeds hold up during busy evening periods is a critical issue for many consumers, and all service providers must have a reasonable basis for the broadband speed claims that they make”.

Comment and Reaction from Vocus Group

The Sydney Morning Herald (“SMH”) reports Vocus said it was "disappointed that the ACCC has decided to issue proceedings related to activities that occurred between March 2018 and April 2019". A Vocus spokesperson is reported as further saying:

“Dodo and iPrimus have been engaged in discussions with the ACCC over an extended period and have cooperated fully throughout the entire investigation. We are reviewing the ACCC’s claims and will not be providing further comment as the matter is before the courts.”

Previous Remedies from Dodo and iPrimus

Both Dodo and iPrimus offered remedies to customers in 2018 after they couldn’t deliver the internet speeds they had sold to them due to their NBN connection. Dodo was forced to payback 16,000 customers in 2019 after the ACCC found it could not back up claims that its plans were perfect for video streaming.

Previous Action Against Vocus Group

The ACCC has previously pursued Vocus Group for misleading claims related to internet speeds and video streaming quality. An ACCC Media Release reports that in 2019 Dodo agreed to refund up to $360,000 to about 16,000 customers over misleading claims about its entry level NBN broadband plans, with the company entering into an Enforceable Undertaking with the ACCC over claims its service was “perfect for streaming”.

In the 2019 action, the ACCC considered that Dodo customers would use up their data allowance after a modest amount of streaming, when their included monthly data was limited to 10GB.

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