Federal Court of Australia

Australian Competition and Consumer Commission v eHarmony, Inc (No 2) [2026] FCA 1445

ORDERS

THE COURT DECLARES THAT:

1.    Between 1 November 2019 and March 2024, the respondent (eHarmony), by representing on the Free Dating Page (as applicable from time to time) that, by joining as a Basic member, a person could use the eHarmony Platform free of charge in order to find and engage in ongoing communications with other persons with whom they might develop a romantic relationship, in circumstances where it was not possible to “date” other members on the eHarmony Platform without upgrading to a paid Premium membership:

(a)    contravened s 18 of the Australian Consumer Law (ACL) by engaging in conduct in trade or commerce that was misleading or deceptive, or likely to mislead or deceive;

(b)    contravened s 29(1)(b) and (g) of the ACL by making, in trade or commerce and in connection with the supply or possible supply of services or the promotion by any means of the supply or use of services, a false or misleading representation or representations that the services were of a particular standard, quality, value or grade, or had performance characteristics, uses or benefits; and

(c)    contravened s 34 of the ACL by engaging in conduct in trade or commerce that was liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.

2.    Between 1 November 2019 and July 2024, eHarmony, by representing on the Subscription Page (as applicable from time to time) that a six-month, 12-month or 24-month Premium membership subscription plan could be purchased for a stated amount payable on a monthly basis, in circumstances where monthly instalments attracted an additional mandatory fee of $3.00 per month:

(a)    contravened s 18 of the ACL by engaging in conduct in trade or commerce that was misleading or deceptive, or likely to mislead or deceive; and

(b)    contravened s 29(1)(i) of the ACL by making, in trade or commerce and in connection with the supply or possible supply of services or the promotion by any means of the supply or use of services, a false or misleading representation or representations with respect to the price of the services.

3.    From 1 November 2019, eHarmony contravened s 48(1) of the ACL by making representations in trade or commerce on the Subscription Page (as applicable from time to time) with respect to the monthly prices payable for the supply of services under Premium membership subscription plans without specifying, in a prominent way and as a single figure, the single price for the services under each subscription plan.

4.    From 1 November 2019, eHarmony, by representing on the Subscription Page and the Payment Page that Premium membership subscription plans were for specified periods of finite duration (either six, 12 or 24 months) only, in circumstances where the subscription was subject to automatic renewal for a 12-month term at the regular undiscounted price unless the member took certain steps to disable automatic renewal before the end of the subscription period:

(a)    contravened s 18 of the ACL by engaging in conduct in trade or commerce that was misleading or deceptive, or likely to mislead or deceive; and

(b)    contravened s 34 of the ACL by engaging in conduct in trade or commerce that was liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.

5.    Between 1 November 2019 and 11 May 2023, eHarmony, by representing on the Free Dating Page (as applicable from time to time until 27 October 2021) and the 12 Golden Rules Page (as applicable from time to time until 11 May 2023) that it was possible to purchase a Premium membership subscription plan for a period of one month, in circumstances where it was not possible to subscribe for Premium membership for a one-month period:

(a)    contravened s 18 of the ACL by engaging in conduct in trade or commerce that was misleading or deceptive, or likely to mislead or deceive;

(b)    contravened s 29(1)(b) of the ACL by making, in trade or commerce and in connection with the supply or possible supply of services or the promotion by any means of the supply or use of services, a false or misleading representation or representations that the services were of a particular standard, quality, value or grade; and

(c)    contravened s 34 of the ACL by engaging in conduct in trade or commerce that was liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.

6.    From August 2019 to 27 October 2021, eHarmony, by representing on the Free Dating Page (as applicable from time to time) that a Premium membership subscription could be cancelled during the subscription period without any ongoing charges or liability in respect of the balance of that period, in circumstances where cancellation was only effective at the end of the subscription period and there was no refund or waiver of amounts paid or payable in respect of the balance of that period:

(a)    contravened s 18 of the ACL by engaging in conduct in trade or commerce that was misleading or deceptive, or likely to mislead or deceive; and

(b)    contravened s 29(1)(m) of the ACL by making, in trade or commerce and in connection with the supply or possible supply of services or the promotion by any means of the supply or use of services, a false or misleading representation or representations concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

THE COURT ORDERS THAT:

7.    The matter be listed for a case management hearing on a date not before 28 days after the making of these orders.

8.    The costs of the proceeding are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J:

1    On 25 August 2026, I delivered my reasons for judgment in the liability stage of this proceeding: Australian Competition and Consumer Commission v eHarmony, Inc [2026] FCA 1208 (J). In those reasons, I found that the respondent, eHarmony Inc, had contravened ss 18, 29(1)(b), (g), (i) and (m), 34 and 48 of the Australian Consumer Law (ACL) contained in Sch 2 to the Competition and Consumer Act 2010 (Cth). The parties were required to file and serve proposed orders giving effect to the reasons for judgment, and for the further disposition of the proceeding.

2    Each of the Australian Competition and Consumer Commission (ACCC) and eHarmony has adopted a different position as to the form of orders that should be made at this stage of the proceeding. On the one hand, the ACCC seeks timetabling directions for the penalty stage of the proceeding, and contends that any declarations of contravention should be made later, alongside orders in respect of penalties and other relief. On the other hand, eHarmony has proposed that declarations should be made now in relation to the contraventions that were the subject of findings in the judgment on liability, and that the further conduct and case management of the penalty stage of the proceeding should be addressed at the end of the period within which an application for leave to appeal may be filed in relation to those declarations of contravention.

3    In my view, it is appropriate to make declarations in relation to eHarmony’s contraventions of the applicable provisions of the ACL. Such declarations will formalise and carry into effect the outcome of the judgment on liability. This will both provide an opportunity for eHarmony to seek leave to appeal from any of the liability findings, and facilitate the hearing of the relief stage by identifying the contraventions by reference to which penalties and other orders are sought.

4    Under s 224 of the ACL, the power to order a person to pay a pecuniary penalty is conditioned on the court’s satisfaction that the person has contravened a provision in respect of which such a penalty may be imposed. This does not necessarily require a declaration of contravention to have been made: cf. Australian Securities and Investments Commission Act 2001 (Cth), ss 12GBA, 12GBB; Corporations Act 2001 (Cth), ss 1317E, 1317G. Nevertheless, it may be appropriate for such declarations to be made recording the contraventions of which the Court is satisfied at the completion of the liability stage of the proceeding.

5    It is accepted that the bifurcation of a civil penalty proceeding into separate hearings on liability and relief

… ordinarily has significant advantages for the court and for the parties, including that: (1) no evidence or submissions directed to form or quantum of relief are required unless and until liability is established; (2) if liability is established, the parties can identify and address the issues relevant to the question of relief informed by the determinations of liability, and by the manner in which the parties conducted themselves at the liability stage.

(Footnotes omitted.)

SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8; (2026) 100 ALJR 489 at [49] (Gageler CJ and Gleeson J); see also at [69], [71] (Gordon J), [126]–[128] (Steward J), [134], [137], [144]–[145] (Jagot J), [193] (Beech-Jones J).

6    Such advantages may be fulfilled by the making of declarations of contravention that reflect the findings made at the liability stage.

7    While such declarations are final in nature, the judgment on liability is nevertheless characterised as an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the basis that it does not finally determine the rights of the parties: Monash Health v Singh [2023] FCAFC 166; (2023) 327 IR 196 at [43]–[44] (Katzmann, Snaden and Raper JJ); Latitude Finance Australia v Australian Securities and Investments Commission [2025] FCAFC 124 at [16] (O’Bryan, Cheeseman and Bennett JJ). Accordingly, an appeal can only be brought from such a judgment if leave to appeal is given. But if declarations are not made, there could be no appeal from the reasons for judgment or the findings of contravention until final orders were made following the hearing on penalties and other relief.

8    The ACCC submitted that any application for leave to appeal from declaratory orders would lead to the fragmentation of the proceedings and cause delay to their finalisation: see Latitude Finance at [17]–[18], [23]. However, there can be competing efficiencies in so far as any appeal might be successful in overturning or varying one or more of the declarations of contravention: see e.g. Power Ledger Pty Ltd v Griffiths [2021] FCA 624; (2021) 308 IR 147 at [68] (Banks-Smith J). Conversely, if an application for leave to appeal is refused or an appeal is dismissed, questions in relation to penalties and relief can then be heard and determined on the basis of the contraventions that were found at the liability stage. Accordingly, it is not uncommon for declarations to be made at the liability stage, and for the hearing on penalties and other relief to be postponed until appeal processes have been exhausted: see, e.g., Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 5) [2021] FCA 919 at [2]–[12] (Stewart J); Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (in administration) (No 6) [2025] FCA 542 at [6]–[10] (Stewart J); Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (No 3) [2024] FCA 83 at [1]–[4] (O’Callaghan J).

9    Ultimately, the question whether it is appropriate to make declarations at the conclusion of the liability stage of a civil penalty proceeding will depend on the circumstances of the particular case. As Stewart J stated in Productivity Partners (No 5) at [4]:

In that regard, there are clearly competing considerations. On the one hand, it is desirable to avoid the situation where a proceeding might go on an appeal more than once because of the wasted costs, time and effort that that entails, including the commitment of the resources of the Full Court to more than one appeal. On the other hand, if an appeal on liability is successful, all the time, effort and costs taken in preparing for and conducting a penalties and other remedies hearing and thereafter preparing and publishing a judgment will be wasted.

10    The approach for which the ACCC contends is similar to that adopted by Burley J in Australian Competition and Consumer Commission v viagogo AG (No 2) [2019] FCA 907 at [7], who accepted that, in the circumstances of that case, it was “likely to be more efficient and appropriate for all issues concerning relief, including declaratory orders, to be considered and finalised at once”. Among other things, this was seen as avoiding the “well known practical and procedural disadvantages [of] the separation of issues”, including “the undesirable possibility that there will be multiple appeals and hearings concerning the same underlying subject matter”: viagogo AG (No 2) at [10]. In circumstances where the hearing on liability had been “on the simpler side of such matters”, and it was doubtful that the hearing on relief would be any more complex, Burley J considered that “[t]he likely cost and delay to be occasioned by an application for leave to appeal is in my view not warranted”: ibid. at [11]. Accordingly, his Honour declined to make declarations, and instead made timetabling orders for the preparation of the hearing concerning relief: ibid. at [10].

11    To similar effect, Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 4) [2016] FCA 382 refused an application for declaratory orders following the determination of questions of liability. The respondent sought such orders for the purposes of facilitating an appeal. In addition to issues about the form of any declarations made, Edelman J noted the potential inefficiencies that could arise from multiple appeals: Valve Corporation at [11]–[13]. The hearing on liability had occupied three days, and the possibility of saving the costs of a one day penalty hearing was “disproportionate to the possible cost and time involved in the circumstances of multiplied appeals”: ibid. at [15].

12    On the other hand, in Australian Competition and Consumer Commission v Unique International College (No 7) [2017] FCA 1289, Perram J proceeded to grant declaratory relief at the liability stage prior to a further hearing on relief. Each of the ACCC and the respondent had adopted competing positions on that issue, comparable to the positions that were adopted by the parties in the present case. Justice Perram decided that the respondent’s approach was to be preferred, particularly in the light of “the possibility of further discovery between the parties and the real likelihood of a lengthy and complicated hearing on relief”: Unique International College at [4]. Among other things, Perram J noted the length and complexity of the liability hearing, and the likelihood that the hearing on relief would be a complicated matter, unlike the circumstances in Valve Corporation: ibid. at [10]–[11]. In the circumstances, Perram J “[did] not consider that the interests of justice would be best served in this case by proceeding with the hearing on relief, absent the declarations, when the Respondent has indicated that it intends to seek leave to appeal against the decision”: ibid. at [12].

13    Similarly, in Productivity Partners (No 5), Stewart J considered that the proper course was to make declarations at the liability stage in accordance with the parties’ agreement, and to hold off on any further remedies until after a foreshadowed appeal. The considerations weighing in favour of that approach included that there was “significant complexity and substantial volume to the factual circumstances” giving rise to the contravention findings, such that an appeal had “the potential to result in a number of different outcomes” which “could have a significant bearing on the penalties and remedies that might be ordered”: Productivity Partners (No 5) at [8]. In those circumstances, there was a real prospect that the penalties and other remedies might need to be revisited following an appeal: ibid. at [9]. In addition, the hearing on penalties was “not likely to be short or easy”, and the ACCC was intending to seek extensive discovery for the purposes of that hearing: ibid. at [10]–[11].

14    The present case involves numerous discrete claims, each of which led to findings that eHarmony had contravened multiple different provisions of the ACL. eHarmony has indicated that it intends to seek leave to appeal from some, but not all, aspects of the judgment on liability. Any such appeal (if leave were granted) could involve a number of permutations of possible outcomes, which might have a bearing on the determination of penalties and other relief. The ACCC has indicated that it will seek discovery from eHarmony on issues relevant to the imposition of penalties and other relief. The penalty stage of the proceeding based on the current findings of contravention is likely to be multifaceted, and will not necessarily be quick or straightforward.

15    In these circumstances, it is appropriate to make declarations which record and give effect to the findings of contraventions made in the judgment on liability.

16    The fact that such declarations are subject to an appeal will not automatically stay the further hearing of the proceedings: Valve Corporation at [7]; Unique International College at [5], referring to Australian Securities and Investments Commission v Edwards [2005] NSWSC 1278; (2005) 56 ACSR 290 at 294 [18] (Barrett J). In the event of an application for leave to appeal from the declarations of contravention, the question whether or not the matter should nevertheless proceed to a hearing on penalties and other relief will depend on all of the circumstances, having regard to what would best promote the overarching purpose of the civil practice and procedure provisions in accordance with s 37M of the FCA Act: Latitude Finance at [23]; Productivity Partners (No 5) at [5]. Any concerns about fragmentation of the proceedings can be addressed in the case management of the proceedings, having regard to matters such as the prospects of success of any proposed grounds of appeal and whether the balance of convenience favours a stay of the proceedings until the determination of any appeal.

17    In the event that the Court were minded to make declarations of contravention, the parties disagreed as to the form of such declarations. The ACCC’s proposed declarations were drawn from the summary of conclusions set out in the liability judgment at J [8]. The orders sought by eHarmony were framed in slightly different terms. The differences were described in eHarmony’s submissions as “primarily stylistic”, but to be preferred as more specific “in conveying the essence of the contravention[s]” including by identifying where the relevant representations were made.

18    I have formulated declarations of contravention by reference to the conduct comprising the contraventions that were found against eHarmony, in a manner that identifies the “gist” of the factual findings on which those contraventions were based: see Unique International College at [17]–[22] (Perram J), referring to Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at [89]–[90] (Gummow, Hayne and Heydon JJ).

19    In relation to the Cancellation Representation (which is the subject of the declaration in order 6), eHarmony pointed out that the Statement of Agreed Facts (SOAF) recorded that the second iteration of the Free Dating Page only covered the period to 25 September 2021, whereas the liability judgment proceeded on the basis that the Cancellation Representation was made on the Free Dating Page until 27 October 2021: see J [480]. The latter was consistent with the allegation contained in the ACCC’s amended originating application (see J [81], [479]) as well as in its opening and closing submissions, and reflected an agreed fact that a preceding sentence containing the One Month Representation had been removed from the Free Dating Page on 27 October 2021 (which conflicted with the “approximate date period” given in the SOAF for the third iteration of the Free Dating Page): J [474], see also SOAF at [25]. In my view, the declaration should reflect the finding set out in the liability judgment. An identification of the relevant number of contraventions during the period in question can be left to the hearing of the penalty stage of the proceeding.

20    Accordingly, I will make declarations in relation to eHarmony’s contraventions of the applicable provisions of the ACL, and list the matter for a case management hearing not before 28 days after those declarations are made.

21    Neither the ACCC nor eHarmony has proposed that an order now be made in relation to the costs of the liability stage: cf. Productivity Partners (No 5) at [13]; Unique International College at [23]. The ACCC sought an order that costs be reserved. In the circumstances, I will reserve the costs of the proceeding to date.

Associate:

Dated:    1 October 2026