Analysis of Google Inc vs Australian Competition and Consumer Commission - Case Study Example

Google v ACCC Introduction In the Google Inc v Australian Competition and Consumer Commission (ACCC) case, the high courtfound out whether, in publishing deceptive or misleading advertisements, it was possible for the online search engine itself to be responsible for the ‘deceptive or misleading behavior’ under the section 52 of the Trade Practices Act (Google Inc v Australian Competition and Consumer Commissioner [2013] HCA 1). In this case note, we are going to review the decision made by the court and its background, the arguments of the ACCC against Google even though the advertisements that were displayed on its platform were not theirs, the defense of Google, the argument that was preferred by the High Court and the implications of the results of the case on business. Factual Background Google Inc is an American international company that specializes in the products and services that are internet-related. It runs the free search engine known as Google. The corporation makes majority of its income via the sale of the advertisements called the sponsored links that are seen alongside the results of searches. Those who want to advertise on the platform use the ‘AdWords,’ which is a Google product in the creation and buying of this advertising (Now section 251 of The Australian Consumer Law). By specifying the web address, the user will be directed to the headline that is clickable, the body text together with their keywords. However, the sponsored links will only be seen when the search term of the user matches one of the key words of the advertiser. When the key words are triggered, they can as well be inserted into the sponsored link’s text or title dynamically. This allows the title or text of one user or advertiser’s message to be slightly of tailored to several various search terms (Now section 251 of The Australian Consumer Law). This case was specifically concerned with four malicious sponsored links. Nevertheless, in these, the marketers included the rival companies or businesses’ names in their key words, and then used the technique of keyword insertion to insert the names of companies or businesses into their advertisements’ titles. The users of Google that were searching for a company or business then got a sponsored link that used the name of that business, however, when clicked; it directs the user to a website of the competitor. ACCC’s argument The argument of ACCC was that Google had involved itself in misleading and deceptive behavior. They claimed that the Google staff or personnel had advised and helped some of the companies doing advertisements in the selection of keywords to create the sponsored links of the advertisers. Google did the suggestions of keywords, and noted the keywords that had done very well to the companies or individuals that wanted to carryout advertisements. The ACCC claimed that such behavior amounted to a falsification of a business affiliation between the company doing the advertisement and its rival by displaying the advert the web address of the advertiser in connection with information about the competitor (Now section 251 of The Australian Consumer Law). On its part, the High Court maintained that this conduct and correspondence was not adequate to confirm that the company, as different from the marketers, had selected the appropriate keywords or even had approved the sponsored links. Nonetheless, such behavior may perhaps meet the section 75B provisions. Google’s defense The primary position of Google was that it was not responsible for the deceiving or misleading impact of the misleading representation response since it was clear to the user of Google search engine that it was just a conduit for the advertising company or individual. Google argued that they were not involved in the creation or production of the content of the material that was displayed on its platform (Google v ACCC (2013) 294 ALR 404, 443 [164]). They claimed that it was the sole responsibility of the advertisers to ensure that they reviewed the contents of their message, and that they only provided the platform for display. They claimed that they did not approve the representations in the advertisements, thus were not involved in the misleading or deceptive conduct. Google also argued that it was entitled to the publishers defense’s benefit provided by the TPA’s section 85(3). The High Court’s argument The sponsored links that were displayed by Google were on the websites of Carsales, STA Travel, Ausdog and Trading Post. These companies’ sponsored links appeared when a user tried to search for the business of a competitor. For instance, a sponsored link to the website of STA Travel appeared when a user tried to search for the ‘Harvey world travel.’ The presumed purpose of these actions were the diversion of web traffic away from the rival or even representation that there was a commercial cooperation between the two businesses (Google v ACCC (2013) 294 ALR 404, 443 [164]). It was actually common ground that the links that diverted traffic were misleading as the user was directed to a page or website or a rival business that they did not intend. The major question that was presented and which the High Court was expected to deliberate on was whether the Google Company, which is the host of all the company websites was really involved in the deceptive or misleading behavior by displaying or allowing the display of the sponsored links on its platform. The High Court through its three judges had a unanimous decision that Google was not responsible for the production or creation of any of the sponsored links that diverted traffic to favor competitors. Google only gives a response to the request of a user for information and serves as a means of communication between the consumers and advertisers. It serves as the link between the two parties and was not involved in what was happening between the different companies (Google v ACCC (2013) 294 ALR 404, 443 [164]). This is due to the fact that the technology involved in the creation of the sponsored links only collects information provided by others for displaying of advertisements. In this manner, the High Court maintained that Google is just the same as other mediums of advertisements, or the link between customers and advertisers and is not responsible for any other thing including the contents. Such other medium of advertisements include broadcasters and newspaper publishers, whether printed, online, TV or radio. The High Court also established that any reasonable user of the search engine would be in a position of knowing the difference between the result of an organic search and a sponsored link. This is because they would be able to comprehend that a sponsored link is an assertion by a marketer, and that there was no approval from Google or even its adoption of any representation that was made in the sponsored link (Now section 251 of The Australian Consumer Law). This implies that Google was not responsible for any deceptive or misleading advertisement or information, even though the four sponsored link’s texts were misleading or deceptive. It its ruling, the High Court made reference to the defense of the publisher in section 85(3) of the, 1974 Act of Trade Practices (Australian Competition and Consumer Commission v Google Inc [2012] FCAFC 49). A publisher who happens to adopt or endorse any advertiser’s representation might be entitled to the legal defense if it can find out that there was no appreciation of the capacity of that particular representation to misled or deceive. In such instances, a publisher might be forced to prove that they have put in place a system for detecting advertisements that are deceptive or misleading.  Implication on Business The ruling by the High Court offers critical guidance for everyone that is involved in the internet advertisement. The ruling shows that websites can be treated in the same manner as the other media of advertisement or marketing, like billboards and print newspapers. Nonetheless, as long as the administrator of a website is not responsible for the production or creating of the website or even approval of its contents, they are not likely to be found to have made a representation that is deceptive or misleading (Australian Competition and Consumer Commission v Google Inc [2012] FCAFC 49). This implies that offering a platform for advertisements is probably going to remain a good source of income for the online businesses and websites. For those doing the advertisements, the decision of the High Court confirms that they will solely be held responsible for the representation that is deceptive or misleading in the advertisements on the internet. This confirms the need to have a careful review of the material for advertisement for the purpose of making sure it adheres to the new provisions of deceptive and misleading conduct in the Australian Consumer law together with some other applicable legal requirements or obligations (Google v ACCC (2013) 294 ALR 404, 435 [143]). Of course the AdWords system of Google is not only limited to Australia, therefore people should recognize that it is not only in Australia that there is a probable trend towards the application of normative business conduct standards on Google taking into consideration its system of AdWords. In the case of Louise Vuitton, the European Court of Justice took a narrow line on the liability of Google for the infringements of trademarks of the advertisers that might come up from the sponsored links. However, it asserted that the company could not essentially depend on the provisions of safe harbor of the 2000 European E-Commerce Directive that also asserts that acting as a ‘just conduit’ is not enough for liability for absolving itself from responsibility as a matter of the law of trade mark, at least as long as there might have been a ‘part that Google played in the creating on the advertisement message accompanying the link of the advertisement or even in the selection or establishment of the keywords (Australian Competition and Consumer Commission v Google Inc [2012] FCAFC 49). The fact that the court did not finally make a ruling regarding the question, but instead remitted it to the national court for determination shows that is know that the AdWords system of Google and its operation could be adjusted to adhere to the legal requirements. To the advertisers, it should be clear to them that the media for advertisement can never be responsible for the content of their advertisements as they only act as a link between them and the consumers, and that they should thoroughly review their message before display. They should also be aware that whereas Google itself was not involved in the deceptive or misleading behavior, the marketers in this case had either initially been found by the first judge or admitted to have been involved in the deceptive or misleading behavior by putting or displaying the advertisements by the use of the Google’s program of AdWords, for display or presentation as sponsored links when one of the brands of the rivals was searched by the users of the search engine. Works cited Google v ACCC (2013) 294 ALR 404, 435 [143]. Google v ACCC (2013) 294 ALR 404, 443 [164] Google Inc v Australian Competition and Consumer Commissioner [2013] HCA 1.  Australian Competition and Consumer Commission v Google Inc [2012] FCAFC 49. Now section 251 of The Australian Consumer Law. Read More