Early this month the High Court delivered it’s judgment in the Google and ACCC appeal. I’ve previously written about this in a previous blog post and have been following this matter for some time now as it is a subject matter that interests me.
The High Court has now unanimously reversed the decision made by the Full Federal Court on the last occasion.
The ACCC had brought proceedings against Google and a number of parties in court in relation to misleading and deceptive conduct. Google had, through its adwords advertising service, displayed a number of these advertisements. For example, one of the ads was displayed when the user searched for “Harvey World Travel”. The adword advertisement displayed led to their competitor, STA Travel, who had purchased an adwords program using those keywords.
In the first instance the initial trial judge considered that Google was just passing on the advertisement as if it were a publisher. At the first appeal, the full federal court considered that Google’s involvement and software went beyond that and found that they were indeed misleading.
At the High Court, the full High Court upheld the findings of the initial trial judge. In a joint judgment, the court noted:
“The primary judge’s findings about the way in which ordinary and reasonable users of the Google search engine would understand the sponsored links were not disturbed in the Full Court. These findings – that ordinary and reasonable users would have understood the sponsored links to be statements made by advertisers which Google had not endorsed, and was merely passing on for what they were worth – were plainly correct. They also support the conclusion reached above. On its face, each sponsored link indicates that its source is not Google, but an advertiser. The heading “Sponsored Links” appears above both top left sponsored links and right side sponsored links, and the URL of the advertiser, appearing within each sponsored link, clearly indicates its source.”
How does this affect me?
The case in the High Court was a question of whether Google was responsible for misleading and deceptive conduct in relation to publishing the ads in question. There was however no doubt that the ads were misleading and deceptive to begin with, and the companies making those advertisements had engaged in misleading and deceptive conduct.
If you are looking to advertise on Google, do NOT use your competitor’s business names or trademarks as part of your Adword strategy. If you are looking to go into the publishing business or you want to sell ads on your website, then the key here is to distinguish between what is an ad and what is a message being communicated by you or your business.