Australian Competition and Consumer Commission v Trivago N.V.

The Australian Competition and Consumer Commission (ACCC) brought an action against Trivago N.V., an online search and price comparison platform for travel accommodation, in the Federal Court. The ACCC alleged that Trivago engaged in misleading or deceptive conduct by making it appear that it offered the best price for a particular hotel. Trivago's television advertisements stated that it made it easy "to find the ideal hotel for the best price". However, the ACCC alleged that Trivago presented prices from a number of different online booking sites for a particular hotel, with one price presented in green, in a large font with space around it (the Top Position Offer). The expert evidence at trial established that in approximately 66% of listings, higher priced offers were selected as the Top Position Offer over alternative lower priced offers.

The court was required to determine whether Trivago made the alleged representations and, if they were made, whether they were misleading or deceptive. The court found that Trivago's conduct was misleading or deceptive, as it presented prices from a number of different online booking sites for a particular hotel, with one price presented in green, in a large font with space around it (the Top Position Offer). However, the court found that the ACCC's allegations regarding additional conduct in relation to the fourth relevant sub-period were not substantiated. The court held that the ACCC had not established that Trivago engaged in the conduct alleged.

The court ordered that the orders made on 19 September 2019 (which relate to confidentiality) be varied to the extent necessary to enable the material in the reasons for judgment to be published. The matter was listed for a case management hearing on a date to be fixed, with the parties to be heard as to whether declarations should be made at this stage or after the further hearing. The court also noted that there would need to be a hearing in relation to relief, including pecuniary penalties.