Unfair contract terms: It’s unfairness, not percentages, that counts

In response to ACCC’s line-in-the-sand report on unfair contract terms in standard form consumer contracts, TCPCode.com.au has explained why it’s words, not actions, that will attract ACCC’s attention in 2013.  Now, we’ll explain why it’s unfairness, not the percentage of ‘affected’ customers that counts, as AAPT discovered in 2006.

As we explained in an earlier post, Australia’s anti-unfair contract terms law isn’t based on actual consumer detriment.  It’s enough that a particular would disadvantage a customer if it was relied on by the telco.

That means that zero actually prejudiced customers is enough to breach the law, if the elements of unfairness are present.  So one prejudiced customer is more than enough, two are ample, three are an abundance and 200 is a surfeit.

Back in 2004, when AAPT was the first Australian telco to be pursued by government under anti-unfair contract terms laws, the company made the misguided defence in the press that:

Unfair contract terms

AAPT lost the case when it came to trial in 2006.

So, if a telco has a term that is unfair within the meaning of the law and it affects just 0.2% of its customers, the term is void under the legislation.  There’s no exception that says that a ‘just a few hundred affected customers is OK.”

About Peter Moon

A telco lawyer with a truckload of experience
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