FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 File number: VID 465 of 2014 Judge: BEACH J Date of judgment: 10 June 2016 Catchwords: CONSUMER LAW – assessment of pecuniary penalty – number of contraventions – course of conduct principle – internet sports betting – promotional headline offers of free bets for new customers – contraventions of Australian Consumer Law – misleading or deceptive conduct and false representations – dominant message conveyed – enticement into marketing web – whether adequate disclosure of terms and conditions – penalties assessed – relief granted Legislation: Competition and Consumer Act 2010 (Cth) Sch 2, ss 18, 29, 224, 232 and 246 Cases cited: ACCC v AirAsia Berhad Company [2012] FCA 1413 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 [2015] FCA 1007 Australian Competition and Consumer Commission v OmniBlend Australia Pty Ltd [2015] FCA 871 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 Australian Energy Regulator v Snowy Hydro Ltd (No 2) [2015] FCA 58 Australian Securities and Investments Commission v Superannuation Warehouse Australia Pty Ltd (2015) 109 ACSR 199 Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (2010) 267 ALR 721 Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 2) [2010] FCA 644 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 R v Thomson Holidays Ltd [1974] QB 592 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 Thompson v Riley McKay Pty Ltd (No 2) (1980) 42 FLR 279 Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305 Date of hearing: 30 May 2016 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 98 Counsel for the Applicant: Mr M O'Bryan QC with Mr E Heerey QC Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: Mr C Moore SC with Ms N Oreb Solicitor for the Respondents: Addisons ORDERS VID 465 of 2014 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: HILLSIDE (AUSTRALIA NEW MEDIA) PTY LTD TRADING AS BET365 (ACN 148 920 665) First Respondent HILLSIDE (SHARED SERVICES) LIMITED (03958393) Second Respondent BET365 GROUP LIMITED (04241161) Third Respondent JUDGE: BEACH J DATE OF ORDER: 10 june 2016 THE COURT DECLARES THAT: 1. The First and Second Respondents, between 18 March 2013 and 13 January 2014 (inclusive), in trade or commerce, and in connection with the supply or possible supply of, or in connection with the promotion of the supply of, betting services: (a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 18 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA); (b) made misleading representations that the betting services were of a particular value, in contravention of section 29(1)(b) of the ACL; (c) made misleading representations with respect to the price of the betting services, in contravention of section 29(1)(i) of the ACL; and (d) made misleading representations concerning the existence, exclusion or effect of a condition in contravention of section 29(1)(m) of the ACL, by publishing or causing to be published on a website accessible by and marketed to Australian consumers at the internet address "bet365.com.au" (the bet365 Website) a promotional offer under a headline reading "$200 Free Bets For New Customers" (the "Free Bets" Offer) thereby representing that new customers of bet365 were entitled to $200 of free bets without limitation or restriction when in fact the following limitations and conditions applied to the "Free Bets" Offer: (i) the customer was required to pay a deposit and risk that deposit before being entitled to make any "free" bet; (ii) the customer was required to risk three times the value of his or her deposit and the amount of the "free" bet prior to making a withdrawal; (iii) the offer was not available for bets at odds less than ½ (1.50); (iv) the amount of the "free" bet and any winnings from any "free" bet was required to be forfeited unless the customer risked three times the value of his or her deposit and the amount of the "free" bet within 90 days; and (v) the amount of the "free" bet was limited by the size of the customer's first deposit. AND THE COURT ORDERS THAT: 2. The First Respondent pay to the Commonwealth within 30 days the sum of $1,500,000 by way of pecuniary penalty under section 224(1) of the ACL. 3. The Second Respondent pay to the Commonwealth within 30 days the sum of $1,250,000 by way of pecuniary penalty under section 224(1) of the ACL. 4. The First and Second Respondents at their own expense cause a corrective notice in the terms and form of the Annexure to this Order to be sent by email, within 30 days of the date of this Order, to each individual who responded to the "Free Bets" Offer between 18 March 2013 and 14 January 2014 other than persons who are the subject of a current notification to the First Respondent of a Timeout or Self-exclusion protocol. 5. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexure Published by order of the Federal Court of Australia [insert bet365 logo] Misleading conduct by bet365 Dear [insert salutation and surname] The Federal Court of Australia has found that Hillside (Australia New Media) Pty Ltd and Hillside (New Media) Limited (together, bet365) have engaged in misleading and deceptive conduct through the promotion of bet365's "$200 Free Bets For New Customers" offer from 18 March 2013 to 13 January 2014. This follows legal action by the Australian Competition and Consumer Commission. The offer conveyed the impression that consumers would be entitled to free bets worth $200 without limitation or restriction. This was misleading because the following conditions applied to the offer: the customer had to pay a deposit and risk that deposit before being entitled to make any "free" bet; the customer had to risk three times the value of his or her deposit and the "free" bet prior to making a withdrawal; the offer was not available for bets at odds less than ½ (1.50); the amount of the customer's "free" bet deposit and any winnings from any "free" bet would be forfeited unless the customer risked three times the value of his or her deposit and the "free" bet deposit amount within 90 days; and the value of the "free" bet was limited by the size of the customer's first deposit. The Federal Court of Australia has declared that bet365 contravened sections 18 and 29 of the Australian Consumer Law. Counselling, information and support in relation to gambling is available: telephone support 1800 858 858 or online support www.gamblinghelponline.org.au. If you have any questions regarding this letter, please contact [insert bet365's contact details]. Yours sincerely [signature] REASONS FOR JUDGMENT BEACH J: 1 On 11 September 2015, I found that the promotion and advertisement of the "Free Bets" offer via the Bet365 website during the period 18 March 2013 to 13 January 2014 (inclusive) was misleading or deceptive or likely to mislead or deceive contrary to s 18 of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) (ACL) and conveyed false representations contrary to paragraphs 29(1)(b), (i) and (m) of the ACL and that the relevant class of persons that would have been affected or likely to have been affected by the contravening conduct included new users of such services and also some customers who may have previously used such services of other providers (see Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 [2015] FCA 1007). I found that the first respondent (Hillside Australia) engaged in the contravening conduct because it had conducted an online wagering business in Australia using the Bet365 website which was marketed to Australian consumers and that the second respondent (Hillside UK) engaged in the contravening conduct because it had provided marketing, IT support, website infrastructure, software development, customer support and management support services to Hillside Australia for the purposes of developing and maintaining the Bet365 website. Both Hillside Australia and Hillside UK are principal contraveners. 2 Flowing from my findings, the ACCC has sought: (a) declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth); (b) injunctive relief pursuant to s 232 of the ACL against each of Hillside Australia and Hillside UK; (c) pecuniary penalties pursuant to s 224 of the ACL against each of Hillside Australia and Hillside UK in respect of the s 29 contraventions; and (d) an order pursuant to s 246 of the ACL requiring the publication of a corrective notice by Hillside Australia. 3 There has been a contested hearing on all aspects of the relief sought. The ACCC has submitted that a penalty in the range of $2.5 to $3 million for each of Hillside Australia and Hillside UK is appropriate to achieve specific and general deterrence having regard, so it is said, to the following matters: (a) The contravening companies are large and collectively market themselves in Australia as the world's biggest online betting company. Their share of the Australian market more than doubled during the period of contravention, although I would note at this point that the doubling was off a modest base. Hillside Australia earned revenues (gains and losses from betting activity) of $29,055,000 in the financial year ending 30 March 2014 and $58,802,000 in the financial year ending 29 March 2015. Hillside UK earned revenues of £932,060,000 in the financial year ending 30 March 2014 and £666,373,000 in the financial year ending 29 March 2015. (b) The contravening conduct was serious and extended for 302 days. (c) The contravening conduct affected a large number of Australian consumers. A total of [Confidential] customers took up the "Free Bets" offer within the period of contravention. Those customers risked deposits of $[Confidential] in direct response to that offer, plus additional deposits (until completion of the rollover requirements of the offer) of $[Confidential]. Having been drawn in by the offer, those customers went on to wager $[Confidential] with Hillside Australia during the period of contravention, generating a net profit for Hillside Australia of $[Confidential]. (d) The ACCC asserts that the contravening conduct was substantially the same as conduct engaged in by Hillside UK and Bet365 Group Ltd (the ultimate holding company) in the United Kingdom on repeated occasions since 2010 and which has been the subject of adverse findings by the Advertising Standards Authority of the United Kingdom. Moreover, it is said that despite the adverse findings that have been made against Hillside UK in the United Kingdom in respect of materially the same advertisement, the companies have demonstrated no contrition and contested the allegations to judgment. (e) Further, it is said that although the contravening advertisement came to be on the Bet365 website through an implementation error, from as early as April 2013 senior management responsible for advertising and legal compliance within Hillside Australia and Hillside UK were in essence informed of the offer through an investigation conducted by the NSW Office of Liquor, Gaming and Racing. (f) Prior to 10 October 2014, neither Hillside Australia nor Hillside UK had taken any steps to have an ACL compliance program in place in respect of website advertising in Australia, despite the previous adverse findings in the UK for substantially the same conduct. 4 Contrastingly, the respondents have submitted that the more modest range of $250,000 to $300,000 divided between Hillside Australia and Hillside UK is a more acceptable pecuniary penalty. I have declined the respondents' invitation to impose a penalty at such a level. For the reasons that follow I have determined that Hillside Australia should pay a pecuniary penalty of $1.5 million and Hillside UK should pay a pecuniary penalty of $1.25 million. I will also make declarations and a limited form of corrective advertising order, but I do not consider that any injunctive relief should be granted. The ACCC has also sought costs, but I have been requested to postpone my consideration of that question until after these reasons have been published. General 5 The power to impose a pecuniary penalty is governed by s 224 of the ACL. Under s 224(1)(a)(ii) of the ACL, the Court may order a person who has contravened s 29 of the ACL to pay a pecuniary penalty in respect of each act or omission by the person. I should say now that I accept the ACCC's submission that each communication of a false representation via the Bet365 website to each person that viewed the website involved a separate contravening act for the purposes of s 224(1). I will discuss the "course of conduct" and "totality" principles later. 6 Section 224(2) provides that in determining the appropriate pecuniary penalty I must have regard to all relevant matters including: (a) the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; (b) the circumstances in which the act or omission took place; and (c) whether the person has previously been found by a Court in proceedings under Chapter 4 or Part 5–2 of the ACL to have engaged in any similar conduct. 7 Section 224(3) provides that the maximum penalty for a body corporate for each act or omission to which s 224 applies that relates to s 29 of the ACL is not to exceed $1.1 million. 8 Section 224(4)(b) provides that if conduct constitutes a breach of two or more of the provisions of the ACL for which a pecuniary penalty may be imposed, a person is not liable to more than one pecuniary penalty under s 224 in respect of the same conduct. Accordingly, although Hillside Australia and Hillside UK contravened each of the three prohibitions in paragraphs (b), (i) and (m) of s 29(1) of the ACL, only one penalty is to be imposed for each act of contravention. This statutory aggregation concept operates differently to the "course of conduct" concept. The latter concept accepts that there may be theoretically multiple penalties flowing from multiple contraventions but considers the course of conduct in assessing the appropriate aggregate penalty for such conduct. The totality principle is yet further removed in that it looks at all factors going to penalty (not just the course of conduct) to determine whether the total overall penalty is appropriate. 9 As noted, s 224(2) sets out three mandatory factors to be considered in determining the appropriate penalty. But there are additional considerations relevant to the assessment of penalty including: (a) the nature and extent of the contravening conduct; (b) the amount of loss or damage caused; (c) the circumstances in which the conduct took place; (d) the size of the contravening company; (e) the degree of power it has, as evidenced by its market share and ease of entry into the market; (f) the deliberateness of the contravention and the period over which it extended; (g) whether the contravention arose out of the conduct of senior management or at a lower level; (h) whether the company has a corporate culture conducive to compliance with the ACL as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; (i) whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the ACL in relation to the contravention; (j) whether the respondent has engaged in similar conduct in the past; (k) the respondent's financial position; and (l) whether the conduct was systematic, deliberate or covert. 10 But it should be said at the outset that deterrence, both specific and general, is the primary objective of imposing penalties under the ACL. 11 For convenience, I refer to and incorporate my discussion in Australian Securities and Investments Commission v Superannuation Warehouse Australia Pty Ltd (2015) 109 ACSR 199 at [53], [55] to [59], [61] and [63], Australian Competition and Consumer Commission v OmniBlend Australia Pty Ltd [2015] FCA 871 at [83] to [87], [89], [92], [115] and [119] and Australian Energy Regulator v Snowy Hydro Ltd (No 2) [2015] FCA 58 at [109] to [116], [118], [121] and [124] on the questions and application of: (a) general and specific deterrence; (b) the methodology to be applied in arriving at a particular penalty figure; (c) the "course of conduct" principle, on which I will further elaborate; (d) the parity principle; and (e) the totality principle. Maximum penalty 12 As noted, the maximum penalty under s 224 of the ACL for each act or omission by a corporation that constitutes a contravention of s 29(1) is $1.1 million. In my view, each communication of the "Free Bets" offer via the Bet365 website to each person that viewed the website involved a separate contravening act by Hillside Australia and Hillside UK for the purposes of s 224(1) and (3). A contravention of s 29 occurs each time a false representation is made. A representation is made when there is a communication of some form. The act of placing information on a website that is yet to be accessed by downloading does not involve the making of a representation. An uncommunicated statement is relevantly no representation. In reality, the representation is made when the website is viewed by a person through downloading the relevant page. 13 If one considers the technology, prior to the download all that one has is information in digital form on the server used by a respondent. For a representation to occur, a customer using his web browser software must issue a request to the relevant server nominating the location of the web page which is identified by a uniform resource locator. When the customer receives the information requested, then and only then could it be said that a representation has occurred. Until that time there is nothing communicated and nothing represented. The communication modes of television or radio are not appropriate technical analogues. 14 In a different context, the application of the ACL to website representations was recently considered in Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 in analysing the question of territorial reach. Statements were made on a website based in Washington State, USA but accessed in Australia. Edelman J observed at [181]: Considered by themselves, they were general representations to the world at large. They are not representations to any person or to any Australian consumer. Until the representations were accessed, the representations were meaningless and could not be the subject of any alleged contravening conduct. But, by the time a consumer had purchased a game or downloaded Steam Client the consumer had a relationship with Valve and representations were made in Australia. 15 In essence, albeit expressed differently for the context that his Honour was considering, the representational component required by s 29 was triggered by the necessary condition of downloading, which relevantly occurred in Australia. Further, in my view defamation law principles also provide a not unhelpful analogy although I accept that one is not dealing with characterising conduct for the purposes of s 29 but rather considering damage by publication in the form of harm to reputation. Publication occurs at the place where a recipient receives a communication. Moreover, in the case of multiple publications, each separate publication may constitute a separate cause of action. In respect of a website publication, it was said in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ that: … ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed. 16 An analogous question for its time was considered in R v Thomson Holidays Ltd [1974] QB 592 in respect of s 14(1)(b) of the Trade Descriptions Act 1968 (UK). That section provided: "It shall be an offence for any person in the course of any trade or business … (b) recklessly to make a statement which is false as to any of the following matters, that is to say … (v) the locality or amenities of any accommodation so provided". The contravening statement was contained in a brochure that was distributed widely. It was held that the false statements in the brochure were made when the brochure was read by members of the public. Lawton LJ on behalf of the Court said (at 597): Further, anyone who in the course of any trade or business makes a statement does so to people; there would be no point in making it unless there was someone upon whom it could have some effect. It follows, in our judgment, that a statement is made when it is communicated to someone. When that will be will depend on the facts of each case. A travel firm which employed door-to-door salesmen to peddle misleading information about package holidays might make a false statement at every house at which they called; another such firm, putting out misleading information in a television advertisement, would make the statement at the time of the broadcast, which would probably be seen by millions of people. Now the defendants put into circulation amongst the public two million copies of a brochure, each of which contained false statements intended by the defendants to be read by, and to influence, one or more readers. The brochures were intended to do what a door-to-door salesman would do, namely, to give information about holidays; but with the printed word the information would be given when the brochures were read. In our judgment that was when the false statements were made, and they were made to each reader. 17 R v Thomson Holidays Ltd was considered in Thompson v Riley McKay Pty Ltd (No 2) (1980) 42 FLR 279. The Full Court was asked, in respect of an information alleging that the defendant was guilty of an offence involving a contravention of s 53(a) of the Trade Practices Act 1974 (Cth) for falsely representing that goods were of a particular quality in an advertisement published in the magazines "TV Times" and "New Idea", whether it was essential to prove that that the alleged false representation was communicated to a specific person and whether the information ought to be dismissed for failing to make that allegation. Both questions were answered in the negative on the assumption that evidence would be available to show that each publication was fairly widely read (at 283 to 286 per Franki J). It was not necessary to prove, for a contravention of s 53(a) (or its modern equivalent), that the representation was made to a specific person. It was sufficient to prove that the representation was communicated to the public or a section of the public more broadly. That ratio is not inconsistent with the principle that I have expressed concerning the s 29 contraventions. 18 Now it may be said that Deane J expressed himself more narrowly (see at 289 and 290). But several points: (a) First, his Honour said that "[t]he act of representing is complete once the subject matter is irrevocably set forth or disseminated upon the course which is intended to lead to the intended representee or representees" (my emphasis) (at 289). So for a billboard or television or radio broadcast and perhaps a dispatched letter (as well as a received letter), the information has been "irrevocably set forth or disseminated". But in relation to information on a respondent's server, there has been no irrevocable setting forth or dissemination. There is simply unpublished uncommunicated information until download. The information remains in digital form on the respondent's server until such time as the consumer's request is made and the act of downloading is triggered. On download there has been a representation. So too perhaps a short time before when the respondent's server has processed the request and the electronic signals have been "irrevocably set forth or disseminated" from the respondent's server. (b) Second, his Honour said (at 290) that: The act of representing being complete, at the latest, when the particular issue of the journal was offered for sale and sold, the fact that the advertisement may subsequently have been read by thousands of readers did not involve a new and independent act of representing on either the first or on each occasion that a particular reader happened to read it. But that analysis flowed from his Honour's analysis that the representation was complete at the time the journal was offered for sale. But if it be accepted in the present context that the representation was complete only at the time of download, then separate downloads strictly complete separate (but identical) representations and theoretically separate contraventions; moreover, s 224(4)(b) does not speak to that situation as it aggregates multiple offences for the same conduct rather than aggregates multiple examples of like conduct. (c) Finally, is the digital context significantly different from a company printing 200 brochures and keeping them under its control, but providing a brochure to a person on request? Prior to a request and then dispatch of a brochure (if not receipt), it cannot reasonably be said that any representation is made. 19 The ACCC has emphasised that it is important to have regard to the maximum penalty imposed by the ACL in a case such as the present where false representations have been made to a large number of consumers. It may be accepted that the maximum penalty for the s 29 contraventions is some considerable multiple of $1.1 million. But it is an arid exercise to engage in a mere arithmetical calculation multiplying the maximum penalty by the number of contraventions even if one could theoretically quantify that latter number (see Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 at [17], [18], [84] and [85] per Allsop CJ). But of course some estimate of the number of contraventions is to be taken into account. In the present case, in relation to the number of s 29 contraventions, one is theoretically considering orders of magnitude well above a single contravention. But it is not productive to quantify this further. Moreover, it is not appropriate to quantify a theoretical maximum for the purpose of then ratcheting down, an impermissible exercise. 20 For present purposes it is sufficient to say that I have taken into account that the theoretical maximum penalty is two to three orders of magnitude above $1.1 million in relation to the s 29 contraventions. But this is a paradigm case for the application of the "course of conduct" principle. The "course of conduct" principle 21 In determining the appropriate penalty for multiple contraventions, there are two related principles to consider: the "totality" principle and the "course of conduct" principle. 22 As I have explained, the totality principle requires that the total penalty for related offences not exceed what is proper for the entire contravening conduct involved taking into account all factors. The principle operates to ensure that the penalties to be imposed, considered as a whole, are just and appropriate. 23 Contrastingly, the "course of conduct" principle gives consideration to whether the contraventions arise out of the same course of conduct to determine whether it is appropriate that a single overall penalty should be imposed that is appropriate for the course of conduct. It has a narrower focus. The principle was explained in Construction, Forestry, Mining and Energy Union v Cahill (2010) 194 IR 461 at [39] per Middleton and Gordon JJ: It is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is "the same criminality" and that is necessarily a factually specific inquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. (emphasis in original) 24 But even if the contraventions are properly characterised as arising from a single course of conduct, I am not obliged to apply the principle if the resulting penalty fails to reflect the seriousness of the contraventions. The principle does not restrict my discretion as to the amount of penalty to be imposed for the course of conduct. Further, the maximum penalty for the course of conduct is not restricted to the prescribed statutory maximum penalty for any single contravening act or omission (i.e. $1.1 million); the respondents' submission to the contrary is rejected. 25 Further, the "course of conduct" principle does not have paramountcy in the process of assessing an appropriate penalty. It cannot of itself operate as a de facto limit on the penalty to be imposed for contraventions of the ACL. Further, its application and utility must be tailored to the circumstances. In some cases, the contravening conduct may involve many acts of contravention that affect a very large number of consumers and a large monetary value of commerce, but the conduct might be characterised as involving a single course of conduct. Contrastingly, in other cases, there may be a small number of contraventions, affecting few consumers and having small commercial significance, but the conduct might be characterised as involving several separate courses of conduct. It might be anomalous to apply the concept to the former scenario, yet be precluded from applying it to the latter scenario. The "course of conduct" principle cannot unduly fetter the proper application of s 224. 26 But in the present case it is appropriate to apply the "course of conduct" principle. The one error flowing from systemic deficiencies of both Hillside Australia and Hillside UK is the single causative event of the theoretically multiple contraventions. Moreover, I am prepared to accept that relevantly both Hillside Australia and Hillside UK were involved in one course of conduct. 27 But notwithstanding these findings, it is a non sequitur for the respondents to say that I am therefore limited to a maximum penalty of $1.1 million and, moreover, in the aggregate for both Hillside Australia and Hillside UK. Parity 28 I was not assisted by the respondents' review of the penalties in other cases for the purposes of applying the so-called parity principle. In one sense it is conceptually incoherent to look at penalties fixed in other cases to calibrate a figure in the present case when all that one has from the other cases are single point determinations produced by opaque intuitive synthesis (where there has been a contest) or single point determinations substantially influenced by the parties' identification of and then consensus to the relevant figure or range (see Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 at [60] per Keane CJ, Finn and Gilmour JJ and Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [76] per Barker, Katzmann and Beach JJ). Deconvolution analysis of the single point determinations in order to work out the causative contribution of any particular factor is unrealistic. But unless that can be done, comparisons outside the co-offender scenario have little value. 29 The respondents' submissions are interlarded with statements of the type "the ACCC seeks record penalties that are nearly twice as much as the most severe penalties imposed for misleading and deceptive conduct …" and "[t]he proposed penalties are completely out of line with comparable penalties …". The respondents also appear to elide the distinction between, on the one hand, the meaningful application of the parity principle, namely, as between co-offenders and, on the other hand, its more ambitious outer-reaches to different contexts, different times and different actors. I was not assisted by the intuitive and ad hoc analysis in [76] to [88] of the respondents' submissions. 30 Nevertheless, I have reviewed the cases cited and taken them into account for the purposes of satisfying myself, if I needed to do so, that the penalties that I have determined to be appropriate in the present case can be relevantly distinguished. The nature and extent of the contravening conduct and the amount of loss or damage caused 31 The "Free Bets" offer involved false or misleading representations on the part of Hillside Australia and Hillside UK. The headline "$200 Free Bets For New Customers*" conveyed that the new customer would be entitled to $200 of free bets without limitation or restriction or at least without the limitations or restrictions which did in fact apply to the "Free Bets". The true position was that the following conditions applied to the promotion: (a) The customer had to pay a deposit and risk that deposit before being entitled to make any "free" bet; (b) The customer had to risk the value of his or her deposit and the amount of the "free" bet three times prior to making a withdrawal; (c) The offer was not available for bets at odds less than ½ (i.e. $1.50 return for a $1 bet); (d) The amount of the "free" bet and any winnings from any "free" bet were forfeited unless the customer risked the value of his or her deposit and the amount of the "free" bet three times within 90 days; (e) The value of the "free" bet was limited by the size of the customer's first deposit; and (f) Residents of some States were not eligible for the offers. 32 The contravening conduct occurred from 18 March 2013 to 13 January 2014 and was directed at a broad range of consumers, being users and potential users of online betting services throughout Australia. There is little doubt that the conduct was both serious and extensive. Further, both respondents were responsible for implementing and promoting the "Free Bets" offer. Hillside Australia holds an Australian licence from the Racing Commission of the Northern Territory enabling it to transact with customers based in Australia for sports betting and was involved in marketing the "Free Bets" offer. Hillside UK's design and publishing department was responsible for marketing, setting the value of the offer and preparing promotional material relating to the offer and its international development department and legal department were responsible for the development of the offer's terms and conditions. 33 The number of customers affected by the contravening conduct and the money wagered by those customers was as follows: (a) A total of [Confidential] customers took up the "Free Bets" offer and made initial deposits of $[Confidential] being an average initial deposit of $[Confidential]. (b) In order to meet all the rollover requirements without making any additional deposit, consumers were required to make successful wagers (on bets with odds that would provide a return of not less than a $1.50 for a $1 stake) risking multiple times the amount of their initial deposit. (c) This means that the hypothetical average "free bets" customer was required to risk a total of $[Confidential] within 90 days of opening their account as follows: (i) First, the new customer was required to risk the total of their $[Confidential] qualifying deposit (this could be done in a single bet or by making a number of wagers totalling $[Confidential]). (ii) Having done this, the new customer satisfied the first rollover requirement and the new customer was then required to risk $[Confidential] (being the value of their qualifying deposit and the matching bonus amount) and was required to do this an additional two times such that they made further bets risking a further $[Confidential] in order to satisfy the three times rollover requirement. (d) Less than [Confidential] of the "free bets" customers ([Confidential]%) met the three times rollover requirement without making an additional deposit. Only [Confidential]% of the "free bets" customers satisfied that requirement at all. (e) The additional deposits made by "free bets" customers until the completion of the rollover requirements totalled a further $[Confidential]. (f) Having been drawn in by the offer, those customers went on to wager $[Confidential] with Hillside Australia during the period of contravention, generating a net profit for Hillside Australia of $[Confidential]. 34 Moreover, by the time each customer made an initial deposit, he or she had provided to the contraveners their full name, street address, email address, telephone number, username and password and details of their preferred payment method, such as their credit card details. The conduct of the respondents was, as the ACCC submitted, significantly more serious than cases involving the use of false or misleading representations to promote the "one off" supply of consumer goods. Once enticed and then ensnared by the headline offer, "Free Bets", customers proceeded to wager significant amounts of money; many of them paid very substantial additional deposits. 35 Hillside Australia's directors' report for the financial year to 30 March 2014, which covered most of the contravening period of 18 March 2013 to 13 January 2014, recorded that: (a) overall wagering revenues (the gains or losses from wagering activities) had increased to $29,100,000 from the previous year's total of $7,700,000; (b) total amounts wagered had increased to $1,475,000,000, an increase of $842,000,000 from the previous year; and (c) active users had increased to 73,000, an increase of 83% over the previous year. 36 The number of customers who took up the "Free Bets" offer during the contravening period made up a significant proportion of the 73,000 active users. 37 The ACCC has also contended that the misleading conduct of the respondents provided them with an unfair competitive advantage vis-à-vis those online bookmakers operating in Australia who did not use false or misleading statements to market their services. But I am not convinced that the ACCC has meaningfully justified such an assertion in the sense that although the statement is strictly true, I am not able to assess whether other online bookmakers were as pristine in their conduct as the ACCC's submission might imply. 38 I agree that the ACCC has not led any evidence to show that customers were in fact misled or suffered any loss or damage. The Full Court in Singtel Optus held at [58] that the absence of loss or damage to customers is a circumstance that would usually attract a less severe penalty than if substantial harm had been inflicted on consumers; specifically, "the absence of such evidence, in a case such as this, constitutes a factor in mitigation of penalty". But one has to be careful not to take these observations out of context. In my case, although there is no direct evidence, significant numbers of consumers are likely to have suffered harm. They were enticed and ensnared into a situation which provided the opportunity to lose significant sums, which I am entitled to infer subsequently occurred. 39 The respondents say that a significant majority of customers received a "free" bet. That is, they were eligible to and did place a bet risking someone else's money as opposed to their own. That is true so far as it goes but it does not tell the real story. 40 The respondents say that it is impossible to know whether any and if so how many customers were misled by the conduct in question. They say that most of the customers were not casual punters but rather were likely to be serious on-line betters. Of customers who were Free Bet customers, the average value of total bets placed by those customers while the Free Bet webpage was on display is $[Confidential]. It is also said that it is relevant that some of those customers would have joined towards the end of the period and would have had limited time to place bets. Further, it is said that at the time of the conduct in question, many of the leading on-line betting companies in Australia had advertisements promoting "Free Bets" or "Bonus Bet" which were subject to various terms and conditions including rollover requirements. It is therefore said that it cannot be inferred that customers were betting with Bet365 on some false basis. I disagree. 41 The respondents refer to the fact that the ACCC has placed emphasis on the percentage of Free Bet customers who completed their rollover requirements so as to be able to withdraw money from the bonus account. However, the respondents say that it fails to recognise that a customer has the benefit of a free bet when the customer is able to bet with somebody else's money and loses that amount. For example, take a customer who receives a bonus deposit and uses it to make bets. Assume the customer bets $100 of Bet365's money and wins $50 and then places a further bet with the $50 and loses it and ceases further betting. That customer may not have met the rollover requirements to withdraw money but has had the benefit of a free bet. When these customers are taken into account, the percentage of customers who have obtained the benefit of the Free Bets offer is [Confidential]%. I have taken this into account in my overall determination. 42 Finally, on this aspect, Hillside Australia says that it made a loss on bets made by Free Bets customers during the Free Bets period. I have taken this into account, although it is important to also consider what it could have made in addition to what it did make. Whether the contravening conduct was reckless 43 The ACCC has contended that the contravening conduct should be regarded as reckless for at least the period from April 2013 to January 2014. In essence, its point was that the respondents at the least knew of a significant risk but did little, if anything, meaningful about it; in that sense it was propounding an objective test for recklessness in contrast to a subjective test. It has referred to the following matters: (a) The UK Advertising Standards Authority (ASA), the independent regulator of advertising which monitors compliance with the UK Advertising Codes, made adverse findings against Hillside UK and its parent company on three prior occasions in relation to similar offers. (b) On 4 August 2010, the ASA adjudicated that Hillside UK's website advertisement stating "£200 Free Bets For New Customers" was misleading because it did not make clear that new customers could only claim £200 in free bets if they staked a significant amount of their own money first and because it did not make clear that free bet participants could only withdraw winnings if a number of conditions were met first. (c) On 24 July 2013, the ASA again adjudicated that Bet365's website advertisement stating "£200 Free Bets For New Customers" was misleading for similar reasons. The relevant terms and conditions were more than one click away from the headline advertisement. (d) Prior to the contravening conduct, Hillside UK was aware of the potential to mislead consumers by the use of "free bets" type advertisements. (e) Hillside UK's legal department, as well as other Hillside UK departments, were responsible for the development of the terms and conditions of "Free Bets" and "Deposit Bonus" offers and for ensuring legal compliance in respect of the offers. Hillside UK's general counsel is Stephen Sweeney. (f) Mr Adams, a solicitor employed by Hillside UK and who reports to Mr Sweeney, deposed that on 18 March 2013 the Bet365 group of companies implemented a software change and that a result of this change was that the "splash page" for the Bet365 Australia website was "changed mistakenly" so that the offer "$200 Deposit Bonus" was replaced with "$200 Free Bets". Mr Adams also deposed that he did not become aware of this until 7 January 2014. (g) The ACCC says that the evidence shows that Mr Sweeney and other senior managers had been on notice since at least 18 April 2013 that Hillside Australia had been making the "Free Bets" offer, only one month after the change from "$200 Deposit Bonus" to "$200 Free Bets". (h) On 11 April 2013, the NSW Office of Liquor, Gaming and Racing (OLGR) sent an email to Aaron Holst (Bet365 head of trading for Australia) concerning Bet365's advertising of "$200 Free Bets" on the website of the Football Federation of Australia. (i) On 18 April 2013, Mr Sweeney was sent a copy of the OLGR's email and Mr Holst's response which referred to clause 6 of the terms and conditions of the "Free Bets" offer which were available on Bet365's website. (j) Later on 18 April 2013, Mr Sweeney was sent an email from Chris Downy, the Chief Executive Officer of the Australian Wagering Council, on the subject of the OLGR's investigation of Bet365. (k) At the end of May 2013, Mr Sweeney was copied to email correspondence between senior managers of Hillside UK (including the marketing manager for Australia, Daniel Taylor) about the prevalence of "free bet" offers in Australia (a "free bet arms race" in the words of Chris Downy of the Australian Wagering Council), with a suggestion from head of trading, Aaron Holst, that the whole industry should cease promotion of free bets and money back offers on all television and radio advertising. (l) Accordingly, the most senior legal officer of Hillside UK, who as the head of its legal department was responsible for the development of the terms and conditions of "Free Bets" and "Deposit Bonus" offers and for ensuring legal compliance in respect of those offers, knew for at least nine months that Hillside Australia was making the "Free Bets" offer. (m) It is said that there is no evidence that Mr Sweeney took any action to cease such use of "Free Bets" until after receipt of the ACCC's s 155 notice in January 2014. (n) Further, it is said that the evidence shows that senior managers of Hillside UK and Hillside Australia were monitoring and managing the "Free Bets" offer during the contravening period: (i) On 14 May 2013, Daniel Taylor (marketing manager, Australia) sent an email to John Coates, a director of Hillside UK, attaching a marketing analysis for Australia which reproduced a copy of the "Free Bets" offer. (ii) In June 2013, Daniel Taylor was involved in the set-up of "Free Bets" offer advertisements for other websites. (o) Mr Adams also deposed that the Bet365 group of companies had a team of software developers that implement on average over 3,000 software changes each month. It is apparent that the website is under a constant process of change and it would be expected that it is also under a constant process of review, including for legal compliance. 44 In summary, it is said that in the circumstances the contravening conduct should be characterised as at least reckless from at least April 2013. 45 Further, it is said that from at least April 2013 senior management of both Hillside UK and Hillside Australia were aware of Hillside Australia's ongoing use of the "Free Bets" offer. 46 Generally, it is said that for at least the nine month period from April 2013 to January 2014, the contravening conduct was attributable to senior management of both Hillside UK and Hillside Australia. 47 The respondents have disagreed with the ACCC's characterisation of the relevant conduct. On this aspect I am inclined to agree with the respondents' analysis save that I consider the respondents' conduct to have been objectively reckless. 48 When Hillside Australia commenced trading in 2012, the "splash page" (or opening page) contained the message "$200 Deposit Bonus Bet Now Terms & Conditions Apply". That message was not misleading or deceptive. However, the message changed on 18 March 2013. On that date the Bet365 Group implemented a global software change to improve the functionality of the splash pages on Bet365 websites and as a result of an implementation error the previous message was changed to the particular "Free Bets" message which I found to be misleading or deceptive. This included removal of the words "Terms & Conditions Apply" such that there was no reference to terms and conditions. Apparently, the software change was designed to improve the functionality of multilingual sites and had no apparent application to the Australian site but by accident changed the wording on the Australian site. 49 The change was not noticed for some time because the splash page was only visible to a first time viewer and would therefore not be visible to any employee of Bet365 who had previously accessed the splash page. In order to view the website, an employee would have had to clear his or her cookies. On 7 January 2014, Mr Adams was reviewing another Bet365 website and as a result of that decided to review all of the splash pages. He had to clear his cookies in order to do so. Upon reviewing the Australian page, he became concerned that there was an asterisk that did not connect to anything and there was no reference to terms and conditions contrary to what he understood the practice to be. He took steps to rectify this which resulted in the second version of the splash page which I found was not misleading or deceptive. This all occurred prior to the respondents receiving any communication from the ACCC. 50 In one sense the conduct in question was inadvertent although in my view it manifested serious systemic deficiencies. But I agree with the respondents that this is not a case in which a respondent has chosen to promote its products or services in a manner which the Court has found to be misleading. 51 Further, the ACCC has agreed that the contravening conduct began on 18 March 2013 as the result of an error in the implementation of a global software change to improve the functionality of splash pages on Bet365 websites around the world. 52 The ACCC's submission is that because some members of the respondents' legal team were aware of decisions made by the UK ASA under a different legal regime or because some members of the respondents' legal team became aware of certain Office of Liquor, Gaming and Racing correspondence which was not about the splash page on the Australian website, they ought to have been aware of the contents of the splash page on the Australian website and ought to have known that it was misleading. That submission is ambitious. 53 The ASA decisions concern different conduct under a different regime. I agree with the respondents that the ACCC gives the decisions of the ASA an inflated significance and a relevance to considerations about Australian operations that they do not have. The ASA decisions exist in a different regulatory prism, apparently pursuant to some form of voluntary code, in circumstances in which the UK does not have an ACL equivalent. Accordingly, what is and is not permissible by way of advertising in the UK has reduced relevance in Australia. 54 The first ASA decision held that it was acceptable for Hillside UK to have used the term "Free Bets" as long as the terms and conditions "were no more than one click away". It is unclear whether this was the application of some existing "rule of thumb". Such a rule is not the law in Australia. The second ASA decision considers the ASA's interpretation of the phrase "Free bet winnings exclude stake". This was not a phrase that appeared in connection with the "Free Bets" offer in Australia. 55 I do consider, however, that the ASA decisions are part of the relevant matrix of circumstances which ought to have heightened the awareness of risk and the continual need to monitor the content, suitability and legality of the content of websites across all operations. Moreover, this should have been done proactively, rather than just reactively to a particular design, commercial or legal change in a particular jurisdiction. It is surprising that there was not continual monitoring of websites across all jurisdictions on a very frequent basis. 56 As to the OLGR email, it did not concern the Australian Bet365 website but rather concerned a banner ad on a third party website that used different language (including the words "Terms and Conditions Apply"). I have put it to one side. 57 Generally, I accept that the contravening conduct occurred on and after 18 March 2013 as the result of an error. Hillside Australia first notified the ACCC of this fact in its 20 March 2014 response to a s 155 notice. It is apparent that: (a) Mr Adams became aware of the error on 7 January 2014; (b) Mr Adams reported and discussed the matter with Hillside UK's general counsel on 8 January 2014; (c) Mr Adams then expedited the need to resolve the problem and it was completed within six calendar days of his noticing the error; and (d) it was completed before the ACCC sent Hillside Australia a s 155 notice. 58 I also accept that the contravention did not arise out of an active decision by senior management. But having said that, the fact that the conduct was allowed to occur for a significant period demonstrated serious systemic and unacceptable deficiencies. Senior management were responsible for the design and implementation of such inadequate systems. The size and financial position of the respondents 59 As the ACCC has contended, the contravening companies are very large and their financial position is very strong. 60 Hillside Australia and Hillside UK are members of the Bet365 group of companies which provides online bookmaking services to customers in over 200 countries and promotes itself as "the world's biggest online betting company". 61 Hillside Australia earned revenues (gains and losses from betting activity) of $29,055,000 in the financial year ending 30 March 2014 (covering most of the contravening period) and $58,802,000 in the financial year ending 29 March 2015. Hillside UK earned revenues of £932,060,000 in the financial year ending 30 March 2014 and £666,373,000 in the financial year ending 29 March 2015 (£588,120,000 from "discontinued operations" and £78,253,000 from "continuing operations"). Although Hillside Australia made accounting losses in each financial year, the available financial information is not fully transparent as to the amount of expenses that were paid to related companies within the Bet365 group of companies. The accounting losses of Hillside Australia were dwarfed by Hillside UK's net profits of £414,359,000 for the 2014 financial year and £325,532,000 for the 2015 financial year. 62 Hillside Australia's directors' report dated 17 July 2014 noted that Hillside Australia's loss in the 2014 financial year, its first full year of trading since its inception, was in line with the directors' expectations. It was noted that customer numbers were increasing significantly and that the brand and product offering were gaining momentum in the market. The expectation was that over the longer term Hillside Australia would become profitable and deliver a positive financial contribution to the Group. 63 The very large size and strong financial position of the contravening companies must be taken into account when considering the extent to which the penalties achieve specific and general deterrence. But such resources do not in and of themselves justify a higher penalty than would otherwise be imposed. 64 The respondents have contended that the ACCC's submissions place too great a weight on the size, activities and financial health of the Bet365 group more broadly and in overseas markets. It is said that they do not take account of the fact that operations of the respondents in Australia are new, relatively modest and operate at a loss. It is said that any penalty must be considered in the context of the Australian business to which it relates. 65 I accept that the respondents' market share is small. Further, the Australian operations are relatively recent. Hillside Australia was only registered in the Northern Territory in 2011. Its first six months of trading were from July to December 2012. There are 25 other licensed online wagering operators in Australia. At the time of the contravening conduct, the respondents had only a small market share of between 2.1% and 5.0%. Consistent with it being a new business venture in Australia, Hillside Australia operated at a loss during the period in which the contraventions were made. Hillside Australia ended up with losses of: (a) $40.831m between 1 April 2013 and 30 March 2014; and (b) $30.983m between 31 March 2014 and 29 March 2015. 66 Although I accept the respondents' submissions at one level, in my view, the force of the ACCC's submissions is not significantly diminished in terms of the relevance of the size and financial position of the respondents. 67 But I accept that the function of the maximum penalty is not size related per se. As Tracey J explained in ACCC v AirAsia Berhad Company [2012] FCA 1413 at [47]: [w]hilst it is necessary to ensure that the quantum of any penalty fairly reflects the gravity of the misconduct involved, it must always be borne in mind that the maximum available penalty is reserved for the hypothetical worst form of misconduct. That penalty will not be imposed on even a large and wealthy multi-national corporation unless warranted by the nature of its conduct. 68 Although the size of the contravening company is relevant, such a factor is not accorded the same weight as the objective seriousness of the infringing conduct. Whether the company has a corporate culture conducive to compliance with the ACL 69 I agree with the ACCC that there is no evidence of any meaningful ACL compliance programme in place at Hillside Australia or Hillside UK at any time prior to or during the contravening conduct. This is quite unsatisfactory given the extensive operation and reach of these internet betting services. The respondents rightly point to an error being made, but the purpose of putting in place appropriate and properly resourced systems and procedures including compliance programs is to identify and anticipate such risks and to avoid them or ameliorate their consequences in a timely fashion. The respondents did none of this to any meaningful extent. It was not until 10 October 2014 that Hillside Australia's board resolved to adopt a CCA compliance policy and to appoint a compliance officer, but it did not implement that policy until 12 March 2015 (some time was taken to develop the relevant processes and procedures). This was all after the ACCC issued its s 155 notice to Hillside Australia in January 2014 and after the present proceeding was commenced on 12 August 2014. Further, despite Hillside UK's involvement in the conduct of the Australian website, there is no evidence that it had adopted a program to address compliance with the ACL or even had a meaningful compliance program addressing UK consumer law. 70 Further, the contravening companies never lacked the financial resources to formulate and implement a compliance program. 71 The respondents assert that they have built a corporate culture conducive to compliance. They have now, but in my view they did not at the relevant time. I accept that as matters now stand Hillside Australia has implemented a compliance program, that compliance program has now been in place for over a year and that Hillside Australia is continuing to upgrade its compliance program and will be supplementing the existing materials with a webinar or DVD presentation. As for Hillside UK, I accept that compliance training is now also conducted for Hillside UK's customer service, social media and international content teams. Whether the respondents have engaged in similar conduct in the past 72 Neither Hillside Australia nor Hillside UK has been found previously by a Court to have contravened any provision of the ACL. Further, the ASA findings that I have previously referred to also have no relevance on this aspect. Co-operation and whether the company has shown contrition 73 I agree with the ACCC that the respondents have displayed little contrition other than co-operation in efficiently getting this matter determined and now implementing a compliance program. The respondents, as was their right, defended the present proceeding on the basis that no aspect of their "Free Bets" offer was misleading. 74 But the respondents have fully co-operated in this litigation and anterior investigative steps. In particular: (a) Hillside Australia responded to two s 155 notices, the first of which was issued in January 2014; (b) Hillside Australia through its solicitors contacted the ACCC to suggest a meeting; (c) Upon commencement of this proceeding, the respondents approached the ACCC promptly and in good faith to attempt to negotiate a consensual outcome; (d) Hillside Australia made various admissions before the liability hearing concerning its role in conducting the offer on the Bet365 website; and (e) The respondents worked with the ACCC to provide three separate statements of agreed facts, which involved extensive work on the respondents' behalf. 75 The respondents' co-operation and the steps that have been taken in developing and implementing the ACL compliance program is some evidence of contrition. 76 I have taken these matters into account and given the respondents some discount on the penalties that I might otherwise have imposed. Conclusion on penalty 77 In summary, the proposed penalties are necessary and appropriate in order to satisfy the principal object of deterrence, both specific and general. I accept though that limited specific deterrence is necessary in the present case as the conduct is unlikely to be repeated, provided that the compliance program is properly implemented. But the penalties should not be set at the low level contended for by the respondents. To do so would then risk the penalties merely being seen as a cost of doing business and would thereby diminish the necessary deterrent effect. 78 The contravening conduct was extensive in its duration and in the scope of its effect on users of the relevant services. Whilst I cannot quantify the monetary effect on such users, I am entitled to infer that it was substantial. 79 Further, the conduct involved a significant element of recklessness in an objective sense. It occurred in an environment where there was no substantial and rigorous compliance program. The systems that were in place were reactive to change rather than proactive involving continual monitoring of the content of websites. The systems were surprisingly deficient for the nature and scale of the local and global enterprise. The respondents took a risk by not investing in appropriate systems. The risk eventuated. They must accept the consequences. 80 I have given some discount for contrition, co-operation, the fact that an adequate compliance program is now in place and the fact that there has already been some damage to reputation, but at the end of the day a substantial penalty is warranted, particularly given that there are strictly multiple contraventions. I accept that the course of conduct principle can apply to aggregate the contraventions given that there is a common cause. But to do so does not justify me in reducing the overall penalties below the level that I have set, even after also considering the totality principle. 81 The ACCC has contended that the penalty for each of Hillside Australia and Hillside UK should be the same. I disagree. Hillside Australia bears more responsibility, particularly as it more immediately had responsibility to ensure compliance with the ACL. In all the circumstances a higher penalty should be imposed on it. Perhaps my observations may be read as saying that there is an expectation of a higher standard of corporate behaviour from Australian entities than what is expected from foreign operators. In another context that perception may be no bad thing. But in the present context it is to be stressed that the normative standards enshrined in the ACL apply equally to the foreign operator as much as the domestic enterprise. My differentiation between the two entities reflects a different application of the same normative principles to reflect relevant sentencing differences rather than the application of different normative standards. 82 The pecuniary penalty that I fix for Hillside Australia is $1.5 million. The pecuniary penalty that I fix for Hillside UK is $1.25 million. Declarations 83 It is appropriate to make the declarations sought in this case. The ACCC has a real interest in seeking the proposed declarations as the Commonwealth agency responsible for enforcing the ACL. In the present case, declaratory relief will have utility and will serve the public interest in a number of ways: (a) First, it will vindicate the ACCC's claim that Hillside Australia and Hillside UK contravened the relevant provisions of the ACL in the manner stated, thereby serving the purpose of deterrence; (b) Second, it will mark the Court's disapproval of the particular conduct engaged in by Hillside Australia and Hillside UK; and (c) Third, it will set out the foundation for the pecuniary penalty. Injunction 84 The ACCC seeks an injunction under s 232 of the ACL restraining the respondents for a period of three years from publishing or causing to be published any "free bets" offer without clearly and prominently stating in close proximity to the word "free" the limitations and conditions which apply to that offer. 85 In deciding whether to grant injunctive relief, a relevant factor is whether the existing sanctions for the conduct to be the subject of the injunction require to be supplemented by the availability of the range of sanctions applicable to contempt of court. Relevant factors include the period during which and number of occasions on which contraventions occurred, the likelihood of repeated conduct and the potential for damage from repeated conduct. The ACCC has submitted that injunctive relief is required in the present case because the conduct continued for a considerable period of time and the conduct only ceased because of the ACCC's intervention. 86 The ACCC says that the terms of the injunction are limited by reference to the conduct in contravention of the ACL in which the respondents have engaged and are designed to prevent a repetition of that conduct. The injunction is also limited in time to three years. 87 I do not propose to grant any injunctions. 88 The following principles may be distilled: (a) First, injunctive relief will not automatically follow in the event of every breach of the ACL; it is only one weapon in the discretionary armoury; (b) Second, the likelihood of future contravention is an important relevant factor to be taken into account; (c) Third and relatedly, as explained in Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513 at [111] and [114] per Moore, Dowsett and Greenwood JJ: Many contraventions simply will not justify injunctive relief. We doubt whether unintentional misconduct in contravention of s 52 would lead to such relief. An isolated intentional breach may also not warrant it. Conduct which occurred many years before the enforcement proceedings may not do so, especially if the offender has not recently infringed the law, or is no longer in a position where contravention is likely. These are obvious cases, but they raise questions as to the relevant factors in considering whether to grant such relief. The discretion is at large. It is for the relevant applicant to demonstrate that the injunction will serve a purpose. That purpose may involve the protection of the public interest or private rights. … The experience of the law is that unlawful or illegal conduct does not lead to an injunction against repetition of such conduct being sought or granted. A range of other remedies exist in the civil and criminal law which are treated as adequate and appropriate sanctions for such conduct. Normally, it is only where there is a real risk of further misconduct that injunctive relief is contemplated. It is, we think, no answer to this experience to say that subss (4) and (5) provide that absence of any threat of further contravention is no longer a bar to the grant of such relief. An injunction should not be seen as a necessary vindication of the applicant's conduct in bringing the proceedings. Other relief may better serve that purpose. Nor should an injunction be sought primarily for public relations purposes, however worthy such purposes may be. (d) Fourth, a declaration may achieve the same result sought to be achieved by an injunction. 89 In Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (2010) 267 ALR 721 at [41], Perram J in declining injunctive relief said: There was no evidence which suggested that a repetition was contemplated. However the terms of s 80 of the Act make plain that an injunction may be issued in respect of a past contravention and even, as subsection (5) emphasises, if there is no intention on the part of the respondent to repeat the conduct. There may be circumstances when it will be appropriate to grant such an injunction where, for example, future breaches may be expected not because of deliberate conduct but rather by reason of deficient systemic controls. So too, a court may feel that there is a risk that without an injunction a respondent may be tempted into contravention. In this case, whilst I am of the view that Mr Hawkins, in all likelihood, knew that the advertisement was misleading, or at least knew that there was a real risk that it was, I do not think that I can deduce therefrom a future risk of repetition. It would, I think, be wrong to impose an injunction in order to punish perceived deliberate wrongdoing — this is not the point of s 80. 90 Further, in Unilever Australia Ltd v Goodman Fielder Consumer Foods Pty Ltd [2009] FCA 1305, Buchanan J at [56], in declining injunctive relief, said as follows: Injunctive relief is not granted simply as a form of punishment nor as a gesture signifying that one party has prevailed over the other. The Court's view of the conduct will be expressed in the declarations which I propose to make. I would only grant an injunction as a form of final relief if I was persuaded that it was necessary for either the protection of consumers or the legitimate interests of Unilever and, in either case, that there was a sufficiently well-founded basis for an apprehension that, otherwise, further contravening conduct might occur. 91 In my opinion, injunctive relief is unnecessary and of no utility. There is no material likelihood of future repetition. There is now a substantial compliance program in place. Further, declarations sufficiently mark the Court's disapproval of the conduct. Furthermore and in any event, the terms of the proposed injunctive relief are too broad for the reasons advanced by the respondents. Corrective Notice 92 Section 246(2)(d) of the ACL empowers the Court to make an order directing corrective notices to be published. Three key purposes for ordering corrective advertising have been recognised: (a) protecting the public interest in dispelling incorrect or false impressions created by the misleading or deceptive conduct; (b) alerting consumers to the fact that there has been misleading or deceptive conduct; and (c) aiding enforcement of primary orders and preventing repetition of contravening conduct. 93 The power to order corrective advertising is to be used protectively and not punitively (see Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 at [48] to [52] per Stone J). In my opinion, the breadth of the corrective advertisements sought by the ACCC is not appropriate save as to one type of corrective notification that I will order. The ACCC has failed to demonstrate that a protective function would be served by its proposed notices in terms of the breadth of the dissemination that it is seeking. Generally, save in one respect, the proposed notices would not be appropriate or serve a genuine protective function due to the lapse in time since the contravening conduct and, further, that the breadth of the dissemination sought may be apt to confuse consumers. 94 The Court has often refused to order corrective advertising where there has been a considerable lapse in time since the contravening conduct and where it is unlikely that consumers will continue to labour under any misapprehension as a result of the contravening conduct. Further, the Court has previously accepted that corrective advertising would not be appropriate in circumstances where changed product offerings meant that corrective advertising was only likely to mislead consumers. As Perram J found in Luxottica Retail Australia Pty Ltd v Specsavers Pty Ltd (No 2) [2010] FCA 644 at [12], when declining to order corrective advertising, the case before me is "one of those cases where the detail of the deception has, in substance, been lost with the passage of time". Further, as in Luxottica, I cannot be satisfied that the recollections of the relevant class would extend to a grasp of the detail. 95 Since the time of the Free Bets offer, consumers have been presented with various other iterations of "free bets" and "deposit bonus" offers including the other, non-contravening offers that were subsequently made by the respondents. Further, the industry was flooded with other "free bet" offers at the relevant time. It may be difficult to tell them apart, particularly two to three years after first encountering them. 96 Further, many of the Free Bets customers would have also only seen the "Free Bets" offer on one occasion due to the way in which cookies operated on the splash page. Once a consumer had visited the splash page, a "cookie" was transmitted which had the effect that on subsequent visits the consumer was instead re-directed to the home page. The present case is not one of an advertisement that was broadcast frequently and widely to the same consumers repeatedly on television or on radio. 97 In my opinion, publication of a corrective notice with the breadth of dissemination that the ACCC has sought would not assist consumers in a meaningful way. In my view, only a limited and targeted form of corrective notice is appropriate in the present case as set out in my orders. Orders 98 I will make orders to reflect these reasons. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate: Dated: 10 June 2016