• Free Dating Representations

  The Court found that eHarmony's representations that users could engage in "free dating" conveyed to the ordinary and reasonable consumer that they could use the platform free of charge to develop a romantic relationship. In reality, “Basic” membership offered only blurred profile photographs and no ability to exchange multiple messages, making meaningful dating (in the sense of ongoing communication with other members for the purpose of developing a romantic relationship) impossible without upgrading to a paid “Premium” membership. 

  The trial Judge rejected eHarmony's argument that the broader context of its website cured the dominant impression, finding that the inherent limitations on “Basic” membership were "neither clearly nor prominently disclosed" in the relevant pages, and that it was "speculative to assume" a consumer would have explored other pages before registering.

• Monthly Price Representations

  The Court held that eHarmony's advertising of subscription plans (before July 2024) at "from $x / month" represented to consumers that they could purchase a “Premium” membership for that amount payable monthly. In fact, consumers who chose monthly payments were charged an additional mandatory fee that was only disclosed later in the purchase process. From July 2024, 

  eHarmony had made changes to its Subscription Page (including an additional paragraph stating that the total price depended on payment frequency) and the Court found that these additional warnings before purchase were sufficient to prevent the representation from being made. 

• Single Price Not Specified

  eHarmony contravened the ACL by making representations as to monthly prices without specifying, in a prominent way and as a single figure, the total (single) price for the subscription plan. eHarmony’s subsequent disclosure of the total price on the Payment Page could not cure the earlier contravention on its Subscription Page.

• Automatic Renewal Conduct (ss 18, 34 ACL)

  This was perhaps the most significant finding with the Court holding that eHarmony's Subscription Page conveyed the "dominant message and impression" that Premium subscriptions were for specified periods of finite duration (either 6, 12 or 24 months) without adequately disclosing that subscriptions automatically renewed for a further 12-month term at the regular undiscounted price.

  The trial Judge was particularly critical of the way in which automatic renewal was disclosed:

  • The renewal terms were buried in small-font text on the Payment Page, appearing only after the consumer had already selected a plan and entered payment details.
     
  • Most consumers spent between only one and two minutes on the Payment Page, some of which would have been occupied entering credit card details.
     
  • Subscriptions renewed at a "significantly higher price" that was often substantially more than the initial discounted plan, and for a 12-month period that could not be cancelled. The subscriptions were renewed without any prior reminder, and irrespective of whether the account was in active use.
     
  • The ease for consumers in purchasing the subscription contrasted starkly with the difficulties experienced by them when attempting to disable automatic renewal, which required consumers to send an email, telephone Customer Care, or use a chat function. The Court emphasised that while, 

  “the question of whether eHarmony engaged in misleading or deceptive conduct [was] not itself determined by reference to any perceived unfairness in the terms on which subscriptions are automatically renewed, such matters can inform an assessment of whether the disclosure of automatic renewal was sufficient in the circumstances.”

  The Court found this conduct misleading both pre- and post-July 2024, despite eHarmony adding a small-print statement that "[p]lans automatically renew for 12 months at regular rates unless you cancel", which was held to be insufficiently prominent. 

• One Month Representation

  eHarmony's website stated consumers could "subscribe for a month" and start with "a one month subscription", when one-month subscriptions had not been available since September 2019. eHarmony accepted that these pages were "inadvertently not updated" but argued they were not part of the typical user journey, a position the Court rejected. 

• Cancellation Representation

  The “Free Dating Page” stated that "there is still an opportunity to withdraw after signing up if you have second thoughts". The Court found that an ordinary and reasonable consumer would understand this to mean the ability to cancel their “Premium” membership without ongoing liability.  

  In fact, cancellation was effective only at the end of the subscription period, and consumers were not relieved of the obligation to pay for the remainder or refunded any amounts paid. As such, the “Free Dating Page” was misleading.

Penalties and relief: watch this space

As this was a hearing only on liability, the Court has not yet determined penalties, declarations, injunctions or other relief. The Court will receive submissions from the parties in September 2026, and we expect the Court to hand down its decision before the end of the year. 

Given the breadth of the contraventions that span multiple sections of the ACL (most of which will attract separate pecuniary penalties), and the scale of affected consumers (over 1.3 million “Basic” membership registrations and approximately 258,956 “Premium” memberships over almost 5 years), we expect the Court to impose substantial penalties on eHarmony. 

Key reasoning and noteworthy observations 

Several aspects of Justice Christopher Horan's reasoning are worth highlighting for practitioners:

• The "ordinary and reasonable consumer" in online markets

  The Court emphasised that users of online dating services constitute a "large and wide class", many of whom might be "relatively unsophisticated and not hyper-vigilant" regarding unexpected subscription obligations. The standard does not assume consumers will hunt for detailed terms and conditions before purchasing.

• Terms and conditions are not a cure-all

  The Court found it "unlikely that an ordinary and reasonable consumer would navigate to the Terms and Conditions from the Payment Page" or closely read them before purchase. A mere hyperlink to terms and conditions "does not necessarily fix the ordinary and reasonable consumer with notice" of material terms like automatic renewal. 

• Timing and prominence matter

  Disclosures that appear late in the purchase process, in small font, after a consumer has already entered payment details and selected a plan, were repeatedly found inadequate. The Court was clear that subsequent disclosure cannot cure an earlier misleading impression.

• "Dark pattern" design scrutinised

  While the Court did not use the term "dark patterns" or treat “dark patterns” as a separate legal category, its analysis illustrates how the practical design of an online transaction will contribute to the overall impression conveyed to consumers and potentially increase the disclosure obligations on businesses. 

  The contrast between a streamlined sign-up process and less visible or more burdensome renewal and cancellation arrangements formed part of the factual context in which the Court assessed the alleged representations and the duty to prominently disclose certain information. 

Practical takeaways for subscription-based businesses 

The decision crystallises several compliance imperatives for businesses, particularly those operating subscription-based or consumer-facing online services:

1. "Free" means genuinely free: If core functionality requires payment, do not market your service as free. Where a free tier exists, its limitations must be clearly and prominently disclosed at the point where the "free" representation is made, rather than buried elsewhere on the website.
    
2. Price transparency from the outset: Headline prices must include all mandatory fees, or at least make crystal clear that additional charges apply. The ACL requires the single total price to be specified prominently, as a single figure, at the point of the price representation. The "from $x" formulation is not a safe harbour if the baseline price is not actually available without surcharges. Equally, if an advertised monthly figure is available only where the consumer pays the full subscription price upfront, that must be made clear. If monthly instalments attract an additional mandatory fee, the displayed monthly amount must not suggest that the plan can be purchased for the lower amount.
    
3. Automatic renewal demands prominent, timely disclosure: Burying renewal terms in fine print, disclosing them only after payment details are entered, or relying on terms and conditions will not suffice. Businesses should ensure that automatic renewal terms are clearly and prominently disclosed (such as on the same page where subscription periods and prices are first presented) before the consumer commits to a subscription, and again immediately before purchase.
    
4. Cancellation representations must reflect reality: If consumers are told they can "withdraw" or "cancel", those terms must mean what a reasonable consumer would expect: namely, the ability to exit the arrangement without ongoing liability. If cancellation is only effective at the end of a subscription period, that must be stated clearly and prominently before the consumer commits. 
    
5. Audit SEO and legacy pages: eHarmony's contraventions included pages that were "inadvertently not updated" after product changes. Businesses must maintain systems to ensure all public-facing content (including SEO landing pages, FAQs and Help Centre articles) accurately reflects current offerings.
    
6. Ease of exit should match ease of entry: The ACCC and the courts are paying close attention to "subscription traps" where it is quick and easy to sign up but difficult to cancel. Designing cancellation processes that are proportionate to sign-up processes is both good practice and now a demonstrable expectation.

Looking ahead: what this signals for ACCC enforcement

The eHarmony judgment sits alongside a broader pattern of ACCC enforcement activity targeting online subscription models and digital consumer services. It confirms the ACCC's willingness to pursue overseas-based digital platforms operating in Australia and to invest in complex, evidence-intensive proceedings where it perceives systemic consumer harm. 

The decision also signals that courts will take a realistic view of how consumers interact with online purchase flows—in other words,  recognising that people do not read every line of fine print, and that the design choices made by platforms in structuring their sign-up and cancellation processes will be judged by their practical effect on ordinary consumers, not by the theoretical availability of information buried deep within the platform. 

With the penalty phase yet to come, and the ACCC continuing its focus on digital consumer markets, businesses operating subscription models would be well advised to treat this judgment as an opportunity to audit their disclosure and cancellation practices before the ACCC comes calling.