Google Case

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Introduction:

The High Court decision in Google Inc v Australian Competition and Consumer Commission (ACCC) has played a significant role in clarifying the precedent for intermediaries publishing misleading/deceiving third party advertisements. The issue of contention, misleading and deceptive conduct, falls under section 52 of the Trade Practices Act 1974 (Cth) (TPA), now section 18 of the Australian Consumer Law. The following will analyze the majority judgment of French CJ, Crennan and Kiefel JJ in absolving Google of liability under s52 and the subsequent implications.
Facts:

When a user types a search term into Google organic links appear in order of relevance (Tonkin, 2013). Contrariwise, sponsored links are purchased, triggered by keywords the advertiser enters into Google’s ‘AdWords’ program, allowing their link to gain more prominent exposure (Sands, 2013). Some advertisers nominated competitors names as keywords implying a non-existent commercial affiliation. The initial finding of Nicholas J rejected the ACCC’s claim that Google failed to distinguish between organic and sponsored links however the second finding, that Google hadn’t adopted/endorsed any of the misleading advertisements and thus wasn’t liable under s52 was appealed by the ACCC. The Federal Full Court held that s52 was violated as Google presented the advertisements in response to consumer search terms and that it was Google’s technology that had generated the advertisement(Sands, 2013). In the High Court Google contended this decision.

Rationes Decidendi:

• Whether a party has engaged in misleading/deceptive conduct is determined by Yorke v Lucas [1985]. Mason ACJ held, where ‘the corporation is not the source of information, and it expressly or imp...

... middle of paper ...

...a similar ruling was applied however the court also expressly prohibited advertisers from using trademarks as keywords in Google’s AdWords (Tonkin, 2013). Change has however been prompted in Google’s Australian Trademark Policy as of April 2013 (Darby and McGegor, 2013). As Google is unlikely to be found liable for any misrepresentations they will no longer monitor or prevent the use of trademark names as keywords.
Conclusion:

Google Inc v ACCC is legally significant, providing a guide by which creators of online representations can be identified. Thus mere conduits that merely pass on a misrepresentation without endorsing/adopting it are unlikely to be found to contravene s52 of the TPA. Yet there is further room for legal and commercial developments in this area as questions unaddressed by the majority judgment may lead to a different outcome in similar cases.

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