Is Your “Free Trial” Actually Misleading?

What the eHarmony Court Case Means for Every Subscription Business

Free love?

Finding love online may start with a swipe. Paying for it, it turns out, can be considerably more complicated.

Dating platform eHarmony recently found itself in the Federal Court after the Australian Competition and Consumer Commission (ACCC) challenged representations it made about “free dating,” subscription prices, automatic renewals, cancellation and several other aspects of its Australian offering. This was no niche service tucked away in a corner of the internet: between November 2019 and June 2024, around 1.3 million Australian users registered for eHarmony’s Basic membership, and around 259,000 of them went on to become Premium members (ABC News; The Guardian).

The concept itself was simple enough: join at Basic level, browse some matches and access limited functionality, while features such as clear photographs and ongoing messaging were reserved for those who paid for Premium. That gap between what was promised and what Basic members could actually do became the heart of the case.

In Australian Competition and Consumer Commission v eHarmony, Inc 2026 FCA 1208, Justice Horan found that eHarmony had engaged in misleading or deceptive conduct and made a series of false or misleading representations in connection with its subscription services (The Lawyer Mag) — and the lessons from that finding apply well beyond anyone running a dating app.

From $155.64 to $478.80

One customer’s experience shows exactly why subscription terms deserve more attention than they usually get.

A woman who gave evidence in the proceedings bought a six-month Premium membership for a discounted one-off payment of $155.64, and deleted her profile about two months later, reasonably assuming that was the end of the matter. When the six-month period expired, however, her membership automatically renewed and her credit card was charged $478.80 — more than three times what she had originally paid (ABC News). She told eHarmony she did not want to continue, cancelled her card and declined to pay, and the matter was ultimately referred to a debt collection agency over a subscription she believed she had already ended.

The Court heard evidence of substantial numbers of automatic renewals following that same pattern, and the broader question it had to grapple with was whether consumers had been given a sufficiently clear picture of what they were actually signing up for in the first place. ACCC Commissioner Luke Woodward later said “consumers were not adequately informed about their memberships’ duration or that the membership would automatically renew, including, for many, at a much higher price” (ABC News).

That is precisely where a case about a dating app becomes relevant to almost any other business selling online.

When is “free” really free?

eHarmony promoted “free dating,” and the real difficulty was working out what a consumer could actually do without reaching for their credit card. Basic members could access some features of the platform, but meaningful ongoing communication with other members required a Premium membership — which was, of course, not free at all.

The Court found, in substance, that the “free dating” representations could convey to consumers that they could use the platform free of charge to have ongoing communications for the purpose of developing a romantic relationship, and that this was simply not what Basic membership delivered (The Lawyer Mag).

For any other business, that finding raises a deceptively simple question worth asking about your own marketing: if you describe something as “free,” what does your customer reasonably think they are getting for nothing? A free trial, a free account, a free consultation, free delivery or a free version of software can each raise a different version of the same issue, because the gap between the word and the reality is where the legal risk lives. The word itself is short, but as eHarmony discovered, its legal consequences can be considerably longer.

What does “$X per month” actually mean?

A second problem concerned subscription plans advertised using monthly figures. Before July 2024, eHarmony advertised certain plans at prices expressed as “from $X per month,” but customers who chose to pay by monthly instalments could be hit with an additional mandatory payment fee that was not obvious from the headline price. The Court also had to consider whether the total minimum subscription price had been displayed prominently enough as a single figure, which goes to the heart of section 48 of the Australian Consumer Law (The Lawyer Mag).

This matters enormously for any business selling memberships, courses, software, gym memberships, beauty programs or other services over a fixed term, because the temptation to lead with the smallest possible number is universal. A business faced with this issue might reasonably think that the total price is there somewhere on the page, but that does not necessarily answer the legal question the ACL is actually asking. Where that information appears, how prominently it is displayed, and what impression has already been created in the customer’s mind by the time they reach it, can all matter more than the fact that the number exists at all.

Automatic renewal: did the customer really know?

Automatic renewal sat at the centre of the case, with Premium memberships renewing for a further 12 months at the regular, undiscounted price rather than the discounted rate most customers had originally paid. Information about renewal did appear somewhere in the purchasing process and in the terms and conditions, but the Court examined matters such as how prominent it was, when it appeared, and how it was presented alongside everything else the customer was seeing at that moment (Reuters).

That distinction matters more than it might first appear, because there is an enormous difference between a business simply disclosing a fact somewhere in its paperwork and a business disclosing that fact in a way that actually corrects the impression its marketing has already created. The law, on the strength of this decision, appears to care rather more about the second version than the first.

For businesses running any kind of subscription or membership model, the practical lesson is that a renewal clause buried in clause 14.3 of the terms and conditions is unlikely to do much legal work if everything else on the page has told the customer they are getting a one-off discounted deal.

Can the fine print save you?

Businesses often assume that a careful qualification tucked into their terms and conditions will fix a problem created somewhere else on the page, and the eHarmony decision is a fairly blunt reminder that this assumption can be dangerous. Justice Horan considered it “unlikely that an ordinary and reasonable consumer would navigate to the Terms and Conditions from the Payment Page,” which is about as clear a statement as a court can make that fine print is not a magic shield.

The question the Court asked was not whether the information technically existed somewhere on the website, but whether the overall presentation was capable of leading the relevant consumer into error at the point that actually mattered to them. That assessment can involve looking at the headline, the imagery, the price, the layout, the qualifications, the buttons, the hyperlinks and even the particular stage of the purchasing journey at which the important information finally turns up.

A business that gets every individual sentence technically correct can still fall foul of the ACL if the overall journey, taken as a whole, tells a different story to the one in the small print. That is an uncomfortable thought for anyone who has ever assumed that a well-drafted contract is the end of the compliance conversation, rather than the beginning of it.

Who is this mysterious “reasonable consumer”?

One of the more interesting aspects of the decision is exactly who the Court had in mind when it assessed whether eHarmony’s conduct was misleading. When advertising is directed to a class of consumers, Australian courts generally assess its effect by reference to the ordinary or reasonable members of that class, and that person is decidedly not a lawyer with unlimited time, a highlighter and a strong interest in reading every hyperlink on a payment page.

In the eHarmony case, the Court recognised that users of online dating services comprised a “large and wide class,” many of whom might be “relatively unsophisticated and not hyper-vigilant” about the prospect of unexpected subscription obligations landing on their credit card.

That observation matters well beyond dating apps, because it invites every business to ask honestly who is actually looking at its advertising, how quickly they are looking at it, and whether they are more likely doing so on a phone between other tasks than at a desk with time to spare. It is worth asking what a typical customer will understand from the headline alone, whether they will notice the qualification sitting underneath it, and whether a large and prominent word like “FREE” can realistically be undone by three paragraphs of smaller text further down the page. There is rarely a single universal answer to any of this, which is exactly why the reasonable consumer test keeps courts, and marketing teams, so busy.

The law behind the headlines

The relevant provisions sit in Schedule 2 to the Competition and Consumer Act 2010 (Cth), commonly known as the Australian Consumer Law, and four of them did a great deal of work in this case.

• Section 18 provides that “a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” This deceptively short provision remains one of the most important in the whole of Australian advertising and commercial law, because it is concerned with the overall impression created by conduct in its context, rather than with any single sentence in isolation.
• Section 29 separately prohibits a person, in trade or commerce and in connection with the supply or promotion of goods or services, from making specified false or misleading representations — including representations about the standard, quality, value or benefits of goods or services, about price, about a person’s need for goods or services, and about the rights or remedies available to consumers. Unlike section 18, a contravention of these specific prohibitions can attract a pecuniary penalty.
• Section 34 adds that “a person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services,” which was squarely engaged by the way eHarmony’s Basic and Premium tiers were described.
• Section 48 rounds out the picture with its single-price requirement, under which a business that represents part of the price of goods or services must also specify the single total price prominently — it was this provision that came into play when eHarmony advertised plans as available “from $X per month” without giving equal prominence to the full minimum cost.

(Provisions confirmed against reporting in The Lawyer Mag.)

Exactly how these four provisions apply to any given business depends heavily on what is being sold, how the price is structured and how the whole offer is presented, which is precisely why this case is worth reading in full rather than relying on a two-line summary.

It is not just eHarmony

Australian misleading or deceptive conduct law did not arrive with this judgment, and it has developed over decades through a handful of decisions that remain essential reading for anyone advising in this space.

Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 remains the starting point for identifying the relevant class of consumers and considering the ordinary or reasonable members of that class, and it is particularly relevant wherever marketing is directed at the public or at a broad section of it — exactly as eHarmony’s advertising was.

ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 concerned broadband advertising that prominently promoted one headline price while additional charges appeared far less prominently elsewhere, and the High Court’s decision is an important reminder that courts will look at the dominant message an advertisement conveys, because a quiet qualification does not automatically neutralise the impression created by a much louder headline.

Google Inc v ACCC (2013) 249 CLR 435 concerned sponsored links appearing in Google’s search results, and it illustrates a different but equally important point, which is that before deciding whether conduct is misleading, a court first has to work out whose conduct or representation it actually is. That question has only become more important in modern digital advertising, where platforms, agencies, influencers, affiliates and third-party content all sit somewhere between the business and the eventual customer, and untangling who said what to whom is often half the legal battle.

Seven questions worth asking about your own business

The eHarmony decision does not mean every automatic-renewal arrangement is unlawful, and it certainly does not mean every use of the word “free” or the phrase “from $X per month” is misleading, because the real questions are considerably more nuanced than that.

1. What does a customer understand before they ever reach the qualifications?
2. Who is that likely customer, and would a sophisticated commercial purchaser interact with the same material quite differently from an ordinary consumer scrolling on a phone during a lunch break?
3. How prominent is the genuinely important information — since size, location, timing, colour, layout and context can all affect whether a qualification does its job?
4. Is any use of the word “free” qualified clearly enough, given what the customer actually ends up receiving?
5. What happens after an introductory period ends — does the price change, does the agreement renew, and for how long?
6. Is cancelling considerably harder than joining? That alone will not decide whether conduct is misleading, but the design of the overall customer journey can still form part of the relevant legal context.
7. Are your old pages still alive? One particularly practical lesson from this case is that statements about a one-month subscription option remained online well after that option had stopped being available — old landing pages, FAQs, promotional pages, social posts and SEO material can quietly create legal problems long after the marketing team has forgotten they exist.

“But it’s in our terms and conditions”

Perhaps it is, but that is usually the beginning of the legal analysis rather than the end of it. A lawyer reviewing an online offer properly may need to look well beyond the contract itself — taking in the homepage, the Google and social media advertising that drove the customer there in the first place, the landing pages, the pricing tables, the buttons and calls to action, the checkout journey, the FAQs, the cancellation screens, the renewal notices, the follow-up emails and the disclaimers — alongside what a customer actually saw and when they saw it, before ever reaching the terms and conditions themselves.

Sometimes a qualification will be more than enough to protect a business, and sometimes it will not come close, because two perfectly accurate sentences can, when placed together in the wrong order or at the wrong point in the journey, create an overall impression that is genuinely misleading. Sometimes changing a handful of words, moving a disclosure earlier in the process, or restructuring a customer journey can substantially change the legal analysis without costing a business anything close to what a Federal Court proceeding would.

That is exactly why there is no reliable ten-point checklist that can tell every business, in the abstract, whether its advertising complies with the Australian Consumer Law, and why decisions like eHarmony are more useful for training your instincts than for ticking boxes.

Before your customer swipes right

The lesson from eHarmony is not that businesses should abandon subscriptions, introductory prices, automatic renewals or free offerings altogether, because plenty of perfectly lawful businesses use all four every day. It is that the customer needs to actually understand the deal they are being offered, at the point they are being offered it, rather than three months later when a much higher charge appears on their statement.

What matters legally may not be what the marketing team intended to say when they wrote the copy, or what the terms and conditions eventually reveal to anyone determined enough to go looking for them. The question that tends to matter most is what the ordinary and reasonable member of the relevant audience is likely to take away from the whole experience, and that depends on the words used, the design of the page, the context, the customer and the transaction, all together.

Every business is different, which is exactly why a single case study, however entertaining, is never quite the same as having someone look at your own website with fresh eyes. If you operate a subscription service, a membership model, an app, an online platform or any other consumer-facing business, it is genuinely worth having a lawyer review the entire customer journey rather than simply checking that the terms and conditions are technically watertight — because when it comes to online subscriptions, swiping right should not mean discovering six months later that you agreed to something you never realised was there.

Need help?

Sharon Givoni Consulting advises Australian businesses on intellectual property, advertising, branding, misleading or deceptive conduct and the Australian Consumer Law more broadly, and we are always happy to have a genuinely practical conversation about where the risk actually sits in your business. We can review the legal issues raised by your website, promotions, subscription model, pricing displays, disclaimers and customer journey in the context of your own particular business and industry, rather than applying a generic checklist written for someone else’s.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.