The JWS Corporate Counsel Seminar on 30 May offered insights into the ACCC's proceedings against Google, which alleged that Google had engaged in misleading and deceptive conduct.
On 22 June 2012 Google Inc (Google) succeeded in obtaining special leave to appeal to the High Court from a decision of the Full Federal Court.
In 2011 the Australian Competition and Consumer Commission (ACCC) commenced proceedings against Google alleging that Google had engaged in misleading and deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law). The conduct related to the way in which sponsored links were displayed in answer to a Google search.
The issue that is making its way up to the High Court is whether Google made the representations contained in the sponsored links. In four instances relied on by the ACCC, the primary judge held that the advertiser had engaged in misleading and deceptive conduct by falsely representing that there was a commercial association between it and a competitor and that information about the competitor could be obtained by clicking on, what was in fact, the advertiser's web address. However, the primary judge did not consider that Google was liable as all Google had done was represent that the advertisements were advertisements.
The ACCC appealed to the Full Federal Court and a decision was delivered in April 2012. The Full Federal Court held that Google had engaged in misleading and deceptive conduct on the basis that the conduct in question was the display, by Google, of the sponsored link in response to the entry of the user's search term together with the advertiser's URL. Google was, in the Full Federal Court's opinion, more than a conduit of information as it responded to the user's query.
It is not surprising that the High Court has agreed to hear Google's appeal. The legal issues relating to Google's liability are complex and the High Court's decision, if in favour of the ACCC, will have ramifications for search engine providers both in Australia and overseas.
The ACCC's media release can be viewed here.
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