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18 April 2013

Google has had a win in the High Court in successfully defending a claim by the ACCC, which had alleged that Google's search results were misleading and deceptive.  The ACCC's claim was based on the "sponsored links" which are paid for by advertisers to appear (via Google's Adwords Product) on Google's website and the selection of "keywords" which are relevant when displaying search results.

The sponsored links contained material that was misleading and deceptive.  For instance, STA Travel had placed an advertisement and selected the keywords "Harvey World Travel" when they had no relationship with that company.  The result was that a consumer undertaking a Google search for the term "Harvey World Travel" was likely to receive a result containing a sponsored link or advertisement for STA Travel.  Another example included Car Sales choosing the keywords "" as one of its keywords within the Google search.

Google argued that it was merely a publisher (or intermediary) of the material which appeared in its search results and that any advertising material (including specific keywords) were chosen by the advertiser.  The High Court accepted that Google had not endorsed or approved the advertising material, simply by displaying the search results on its website or search engine.  Contrary to the findings of the Full Federal Court (where the ACCC was successful - hence Google's appeal to the High Court) the Court accepted that Google had not actively participated in the advertising process and had acted as "mere conduit" for the advertiser.

There are a number of clear messages which are highlighted by the decision: 

  • Google was found to be in the position of a publisher who did not endorse or approve the advertisements. That will not always be the case.
  • Businesses cannot think that they are able to post material on the internet with impunity. If misleading or deceptive material is posted to the internet, it will be dealt with in the same way as any other traditional (advertising) material.
  • We have previously noted that businesses which have an online presence must be vigilant. In particular where a business has a social media presence (Facebook, blog, LinkedIn page, etc) this should be regularly monitored, otherwise the business may be guilty of adopting or endorsing the material posted to those sites (even by third party users).
  • Businesses should adopt safeguards in relation to their on-line presence and put in place checks and balances to minimize the risk of infringement/complaint.

For more information contact:

Andrew Nicholson | Partner
Mullins Lawyers
t +61 7 3224 0261
f +61 7 3224 0333

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