In a recent appeal to the Federal Court of Australia, the Australian Consumer and Competition Commission (ACCC) won a landmark decision against Google. The case centred on the ACCC’s allegations that Google had engaged in misleading or deceptive conduct by publishing eleven advertisements on Google’s search results page. The headline of each of the advertisements in question comprised a business name, product name or web address of a competitor’s business not sponsored, affiliated or associated with the particular advertiser. When a user clicked the headline of the advertisement, they were taken to the advertiser’s website.
The ACCC alleged that the advertisements contained representations in that if users were to click on the headline they would find information as to the competitor’s business. The ACCC initially lost its case in the Federal Court because the judge found that although a number of the advertisements were misleading or deceptive, Google had not “made” those representations. According to the judge, Google merely communicated representations made by the advertiser.
The ACCC subsequently appealed this decision on the basis that the first judge was incorrect in determining that Google did not “make” the representations contained in the four advertisements which were the subject of the appeal. The appeal judges agreed with the ACCC and reversed the decision of the earlier judge, handing victory to the ACCC.