Australian Competition and Consumer Commission v Trivago N.V. (No 2)

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Trivago N.V., an online search and price comparison platform for travel accommodation, in the Federal Court of Australia. The ACCC alleged that Trivago contravened the Australian Consumer Law (ACL) by misleading consumers regarding the pricing and attractiveness of certain accommodation offers on its platform. Specifically, the ACCC claimed that Trivago advertised that its website would quickly and easily identify the cheapest rates available for hotel rooms, and that the most prominently displayed offer (the Top Position Offer) was the cheapest available or had some other attractive characteristic. However, in many cases, the Top Position Offer was not the cheapest price available, and the platform did not enable consumers to easily identify the cheapest rates. The court was required to determine the appropriate pecuniary penalty for Trivago's contraventions and whether an injunction should be imposed to prevent future non-compliant conduct.

The court found that Trivago's conduct was misleading and deceptive, and that the company had contravened sections 18, 29(1)(i), and 34 of the ACL. The court considered various factors in determining the appropriate penalty, including the seriousness of the contraventions, the need for specific and general deterrence, and the totality principle, which requires the court to consider the overall penalties imposed on the wrongdoer. The court imposed penalties of $30.6 million for the first sub-period, $7.1 million for the second sub-period, $2.1 million for the third sub-period, and $4.9 million for the fourth sub-period, for a total of $44.7 million. The court considered this penalty to be appropriate for the purposes of deterrence, given that Trivago's profit from the contravening conduct and its net income from Australian operations were significantly lower. The court also imposed an injunction to prevent Trivago from representing that Top Position Offers were the cheapest available offers or had some other attractive characteristic if they were not. Finally, the court ordered Trivago to pay the ACCC's costs of the proceeding.

In conclusion, the Federal Court of Australia found Trivago N.V. liable for misleading consumers regarding the pricing and attractiveness of accommodation offers on its platform, and imposed significant pecuniary penalties and an injunction to prevent future non-compliant conduct. The court's decision highlights the importance of ensuring that online platforms accurately represent the information they provide to consumers, and the potential consequences for companies that engage in misleading or deceptive conduct.