Google Inc v Australian Competition and Consumer Commission

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

GOOGLE INC  APPELLANT

AND

AUSTRALIAN COMPETITION AND CONSUMER
COMMISSION  RESPONDENT

Google Inc v Australian Competition and Consumer Commission

[2013] HCA 1

6 February 2013

S175/2012

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 3 April 2012 and the orders of the Federal Court of Australia made on 4 May 2012 and, in their place, order that the appeal to the Full Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

A J L Bannon SC with C Dimitriadis for the appellant (instructed by Gilbert + Tobin)

S T White SC with K C Morgan for the respondent (instructed by Corrs Chambers Westgarth)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Google Inc v Australian Competition and Consumer Commission

Trade practices – Misleading or deceptive conduct – Search engine operator displayed "sponsored links" on search results page – Sponsored links created by or at direction of advertisers – Sponsored links comprised advertising text which directed users to web sites of advertisers' choosing – Whether search engine operator engaged in misleading or deceptive conduct by publishing or displaying sponsored links which contained misleading representations made by advertisers – Whether search engine operator adopted or endorsed misleading representations.

Words and phrases – "adoption", "endorsement", "intermediary", "misleading or deceptive conduct", "misleading representation".

Trade Practices Act 1974 (Cth), ss 52, 85(3).

1. FRENCH CJ, CRENNAN AND KIEFEL JJ.   The appellant, Google Inc ("Google"), operates the well-known internet search engine "Google" ("the Google search engine")[1]. The respondent, the Australian Competition and Consumer Commission ("the ACCC"), claims that particular search results displayed by the Google search engine between 2005 and 2008 conveyed misleading and deceptive representations, and that, by publishing or displaying those search results, Google engaged in conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Act")[2].

   [1]The Google search engine is accessible to users in Australia through the web sites google.com and google.com.au.

   [2]Section 52 of the Act was replaced on 1 January 2011 by s 18 of the Australian Consumer Law, a schedule to the Competition and Consumer Act 2010 (Cth).

2. In July 2007, the ACCC initiated proceedings under Pt VI of the Act, seeking declarations and injunctive relief against Google and another party. At first instance in the Federal Court of Australia, the primary judge (Nicholas J) dismissed the ACCC's application to the extent that it related to Google on the basis that Google had not made the misleading and deceptive representations relied upon by the ACCC[3]. The Full Court of the Federal Court (Keane CJ, Jacobson and Lander JJ) allowed the ACCC's appeal, and made declarations to the effect that Google had contravened s 52 of the Act by publishing the search results[4].  By special leave, Google now appeals to this Court.…