Australian Competition and Consumer Commission v Google Inc

This case arose between the Australian Competition and Consumer Commission (ACCC) and Google Inc, focusing on whether Google engaged in misleading and deceptive conduct by displaying certain sponsored links on its search results pages. The sponsored links in question had headlines that replicated terms of search queries, such as business names, trademarks, or website addresses, which led to confusion among users about the association or affiliation between the advertisers and the terms used in the headlines. The ACCC argued that Google’s conduct contravened section 52 of the Trade Practices Act 1974 (Cth). Google, on the other hand, claimed that it was merely a publisher of the advertisements and relied on the defence provided by section 85(3) of the Act.

The primary issue before the court was whether Google engaged in misleading and deceptive conduct by publishing sponsored links that contained representations of association or affiliation between businesses that were factually incorrect. Another critical issue was whether Google could rely on the defence under section 85(3) of the Act, which permits a defence if the defendant establishes that they received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of the Act. The court had to determine if Google was merely a passive publisher or actively engaged in misleading conduct by allowing the sponsored links to be displayed.

The court held that Google did engage in misleading and deceptive conduct by publishing the sponsored links. It found that the headlines of the sponsored links, which replicated third-party business names or website addresses, conveyed misleading representations that suggested an association or affiliation between the advertisers and the terms used in the headlines. The court rejected Google's reliance on the defence under section 85(3) of the Act, holding that Google failed to establish that it did not know and had no reason to suspect that the publication of the advertisements would contravene the Act. The court also noted that Google did not need to implement a system of controls to prevent the publication of misleading advertisements to avail itself of the defence. Consequently, the court allowed the appeal and set aside the primary judge's orders, declaring that Google's conduct contravened section 52 of the Trade Practices Act. Additionally, the court ordered Google to establish and implement a compliance program and to pay the ACCC's costs of the trial and appeal.