06 February, 2013
Spruson

Google Inc v Australian Competition and Consumer Commission [2013] HCA 1

Google Inc v Australian Competition and Consumer Commission [2013] HCA 1

This was a successful appeal by Google Inc. (Google) to the High Court restoring the decision of the first instance judge of the Federal Court of Australia in Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086. The Australian Competition and Consumer Commission's (the ACCC) appeal from that decision to the Full Court had been successful (Australian Competition and Consumer Commission v Google Inc [2012] FCAFC 49).

The ACCC claimed that Google's display of certain sponsored links, which contained misleading representations, involved a contravention of what was then s 52 of the Trade Practices Act 1974 (now s 18 of the Australian Consumer Law). The ACCC sought declaratory and injunctive relief against Google.

At issue was Google's use of "sponsored links", being search results generated by Google's "AdWords" program as a result of search terms entered by a user of Google's search engine. The AdWords program allows advertisers to create sponsored links, which are displayed to users of Google's search engine when specific search terms are used. These sponsored links are displayed separately from the "organic search results" (generated by a complex algorithm intended to generate the most relevant links based on the search terms used) in a box marked "sponsored links".

The High Court unanimously allowed Google's appeal. French CJ, Crennan and Kiefel JJ held that with respect to the sponsored links, the Google search engine was merely a means of communication between the advertisers and consumers. Google did not create in the sponsored links in "the authorial sense", and that those links appeared as a result of the search terms entered by the user did not make Google "the maker, author, creator or originator" of the information in the sponsored links.

Ordinary and reasonable users of Google's search engine would understand that the advertiser and not Google was the maker of any representations conveyed by the sponsored links and that Google did not adopt or endorse them. Hayne J and Heydon J held that the proposition that Google makes the representations contained in sponsored links because it displayed those links as a result of the user's search terms (via the AdWords program) was an extreme one.


Latest Tweets

Follow @sprusons on twitter.