Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd

The Australian Competition and Consumer Commission (ACCC) filed a case against Trading Post Australia Pty Ltd and Google Inc, alleging misleading and deceptive conduct in the form of online advertising. The ACCC claimed that Google failed to adequately distinguish between sponsored links and organic search results, thereby misleading consumers into believing that sponsored links were organic results. The dispute centred on whether Google's conduct constituted misleading or deceptive conduct under section 52 of the Trade Practices Act 1974 (Cth). The court had to determine if Google made implied representations that the sponsored links were not advertisements, that they were organic search results, and that their position on search results pages reflected their relevance to the search queries. The court also needed to consider the impact of Google's conduct on ordinary and reasonable members of the relevant class of consumers.

The court found that Google did not contravene section 52 of the Trade Practices Act by failing to sufficiently distinguish advertisements from organic search results. The court held that ordinary and reasonable members of the relevant class of consumers were likely to understand that sponsored links were advertisements, and therefore the positions of these links were determined by commercial arrangements between Google and advertisers. The court also found that Google did not make implied representations that the sponsored links were organic search results or that their positions reflected their relevance to search queries. The court further found that Trading Post contravened section 52 of the Act by publishing misleading and deceptive advertisements, including the Kloster Ford advertisement. Trading Post also contravened section 53(d) of the Act by falsely representing that it had an affiliation with Kloster Ford.

The court dismissed the case against Google and ordered Trading Post to pay a declaration and costs. The ACCC was ordered to pay Google's costs of the proceeding. The court also made orders to ensure that its reasons for judgment could be published without contravening any non-publication orders previously made.