Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086

Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086

Google did not contravene s 52 because ordinary and reasonable users would understand sponsored links, identified by the term "sponsored links" and their placement, to be advertisements rather than organic search results, and would not understand Google to represent that their ranking was determined like organic search results. Although several advertisements conveyed misleading representations by the advertisers, Google did not make those representations because it merely published the advertisements and did not adopt or endorse the advertisers' messages. Trading Post did contravene ss 52(1) and 53(d) by publishing the Kloster Ford advertisements because they represented, contrary to...

Jurisdiction
Australia
Judgment Date
22 September 2011
Procedural Posture
Federal Court Proceeding Alleging Misleading or Deceptive Conduct and Related Trade Practices Contraventions Concerning Online Sponsored Link Advertising / Judgment After Trial; Proceeding Settled as Between the ACCC and Trading Post, With Declarations Against Trading Post Deferred Until Claims Against Google Were Determined
Outcome
Declarations made against Trading Post in relation to the Kloster Ford advertisements; the application otherwise dismissed, including all claims against Google; Trading Post ordered to pay an agreed contribution to the ACCC's costs and the ACCC ordered to pay Google's costs.
Legal Topics
['sponsored Links' 'google Ad Words' 'search Engine Advertising' 'keyword Insertion' 'representations of Association or Affiliation' 'publisher Liability for Advertisements' 'trade Practices Act 1974 (cth) S 52' 'trade Practices Act 1974 (cth) S 53(d)' 'trade Practices Act 1974 (cth) S 85(3) Defence']
['trade Practices' 'consumer Protection' 'misleading or Deceptive Conduct' 'online Advertising'] ['sponsored Links' 'google Ad Words' 'search Engine Advertising' 'keyword Insertion' 'representations of Association or Affiliation' 'publisher Liability for Advertisements' 'trade Practices Act 1974 (cth) S 52' 'trade Practices Act 1974 (cth) S 53(d)' 'trade Practices Act 1974 (cth) S 85(3) Defence']

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Procedural Posture

Federal Court Proceeding Alleging Misleading or Deceptive Conduct and Related Trade Practices Contraventions Concerning Online Sponsored Link Advertising / Judgment After Trial; Proceeding Settled as Between the ACCC and Trading Post, With Declarations Against Trading Post Deferred Until Claims Against Google Were Determined

Legal Issues

  1. 1 ['Whether Google engaged in misleading or deceptive conduct by failing adequately to distinguish sponsored links from organic search results on search results pages.' "Whether sponsored links using competitors' names or website addresses in headlines conveyed misleading representations of association, affiliation, approval, sponsorship or availability of information." "Whether Google, by publishing sponsored links, made, adopted or endorsed representations conveyed by advertisers, or merely communicated advertisers' representations." 'Whether Trading Post contravened ss 52(1) and 53(d) of the Trade Practices Act 1974 (Cth) by publishing or causing to be published the Kloster Ford advertisements.' 'Whether Google could rely on the defence in s 85(3) of the Trade Practices Act 1974 (Cth) if it otherwise made misleading representations by publishing advertisements.']

Ratio Decidendi

Google did not contravene s 52 because ordinary and reasonable users would understand sponsored links, identified by the term "sponsored links" and their placement, to be advertisements rather than organic search results, and would not understand Google to represent that their ranking was determined like organic search results. Although several advertisements conveyed misleading representations by the advertisers, Google did not make those representations because it merely published the advertisements and did not adopt or endorse the advertisers' messages. Trading Post did contravene ss 52(1) and 53(d) by publishing the Kloster Ford advertisements because they represented, contrary to...

Court Disposition

Declarations made against Trading Post in relation to the Kloster Ford advertisements; the application otherwise dismissed, including all claims against Google; Trading Post ordered to pay an agreed contribution to the ACCC's costs and the ACCC ordered to pay Google's costs.

Orders

  • ['The Court declared that by publishing or causing to be published advertisements on or about 28 August and 30 August 2005 in response to searches for "Kloster Ford", Trading Post engaged in misleading or deceptive conduct or conduct likely to mislead or deceive in contravention of s 52(1) of the Trade Practices Act...