Background
eHarmony provided Australian consumers with online dating services through a website and mobile apps. Users could register for a free Basic membership, but important functions were restricted: profile photographs remained blurred, and users had only limited ability to exchange text messages. Full access required a paid Premium subscription for six, 12 or 24 months.
The Australian Competition and Consumer Commission alleged that eHarmony contravened the Australian Consumer Law through representations about “free dating,” monthly prices, the total price of subscriptions, automatic renewal, the availability of one-month subscriptions and the ability to cancel. The Court conducted a separate liability hearing, leaving relief, penalties and costs for later determination.
The Court’s Holding
Justice Horan held that eHarmony’s “free dating” representations conveyed that consumers could communicate with other members on an ongoing basis to develop a romantic relationship without charge. Because Basic membership did not provide the functionality needed to do that, the representations contravened ss 18, 29(1)(b) and (g), and 34 of the Australian Consumer Law.
The Court also found that, before July 2024, prices advertised as “from $x / month” misleadingly suggested that consumers could pay the stated monthly amount, although monthly instalments attracted a mandatory additional fee. eHarmony also breached s 48 by failing prominently to state the single total price for each subscription plan. The post-July 2024 pages did not convey the same misleading monthly-payment representation.
In addition, eHarmony misleadingly presented Premium subscriptions as lasting for finite six, 12 or 24-month periods despite automatic renewal for another 12 months at the regular undiscounted price unless disabled. Statements that one-month subscriptions were available, and that subscribers had an opportunity to withdraw after signing up, were also false or misleading because one-month plans were unavailable and cancellation generally took effect only at the end of the paid term without relieving payment obligations or producing a refund. The ACCC therefore established liability on every pleaded category of conduct, with final orders and costs reserved.
Key Takeaways
- A free service may be misleadingly promoted if its restrictions prevent consumers from obtaining the core experience reasonably conveyed by the advertising.
- Displaying a monthly equivalent can mislead where payment by instalments costs more, and suppliers must prominently disclose the single total price when the Australian Consumer Law requires it.
- Automatic-renewal, minimum-term and cancellation consequences must be disclosed clearly enough to correct the dominant impression created during the purchase journey.
Why It Matters
The decision applies established Australian Consumer Law principles to digital subscriptions and recurring billing. Disclosures in terms and conditions, or late in the checkout process, may not cure a misleading dominant message about price, duration or cancellation.
Subscription businesses should assess the entire customer journey—including search-optimised marketing pages, plan-selection screens and checkout disclosures—and promptly remove outdated statements. The judgment determines liability only; the Court directed the parties to propose orders addressing the proceeding’s further disposition.