Reserved decision — breaches of Fair Trading Act — misleading conduct — false or misleading representations — “liable to mislead” — “fibre” — ultra-fast broadband — Fair Trading Act 1986, ss 2(2), 10, 11 & 13(b) — Eagle Corp Ltd v Ellis [2010] NZSC 20 — Godfrey Hirst NZ Ltd v Cavalier Bremworth Ltd [2014] NZCA 418, 3 NZLR 611 — Commerce Commission v Vodafone NZ Ltd DC Auckland 27 September 2011 Judge Kiernan — Optus Mobile Pty Ltd v Telstra Corporation Limited [2018] FCA 745 — Godfrey Hirst NZ Ltd v Cavalier Bremworth Ltd [2014] 3 NZLR 611 — Commerce Commission v NZ Nutritionals (2004) Ltd [2016] NZHC 832 — Commerce Commission v Telecom NZ Ltd [2005] DCR 160 — ACCC v Snowdale Holdings Pty Ltd [2016] FCA 541 — Godfrey Hirst NZ Limited v Cavalier Bremworth Limited [2014] 3 NZLR 611 — DB Breweries Ltd v Lion Nathan Limited (2007) 12 TCR 25. The defendant faced charges of misleading conduct, or alternatively making false or misleading representations. The charges arose from the defendant's advertising for its broadband service FibreX. The prosecutor argued that the advertising campaign misled consumers into thinking that the defendant was offering a fibre to the home (FTTH) service, when in fact it was offering a hybrid-fibre coaxial (HFC) service. The Court heard expert evidence that established that prior to the defendant's advertising campaign, the defendant's competitors had undertaken extensive efforts to educate consumers that the word "fibre" indicated a superior internet service. The defendant argued that it had tried to ensure that potential customers knew that FibreX was an HFC service rather than an FTTH one, and that the name FibreX would not mislead customers into thinking that it was an FTTH service. Further expert evidence held that the name FibreX was in fact likely misleading, because it implied that the defendant was offering a superior fibre service, rather than what it was actually offering which was a service comprised of a mixture of fibre and cables. The Court accepted this evidence and concluded that many consumers who saw the advertising campaign would have concluded that FibreX was an FTTH service. On the issue of whether this constituted misleading conduct under the Fair Trading Act, the Court found that the defendant's efforts to ensure that consumers knew that FibreX was an HFC service rather than an FTTH one were likely to have been ineffective. The defendant's advertising campaign for FibreX was liable to mislead consumers. Further, the advertising campaign did relate to the characteristics of the service provided by the defendant. Contrary to the defendant's arguments, there was a meaningful difference between HFC services and FTTH services, and the differences did matter to consumers. HFC services, including FibreX, were inferior to FTTH services in a number of respects. The elements of the misleading conduct charges had been made out. The Court found the defendant guilty on all nine charges of misleading conduct, and dismissed the charges of making false or misleading representations. Judgment Date: 23 April 2021