ACCC v Google - Competitors’ names, sponsored links and who is in control?

On 3 April 2012, the Full Court of the Federal Court of Australia delivered a landmark decision in the long running proceedings between the Australian Competition and Consumer Commission (ACCC) and Google Inc.

The ACCC alleged that Google Inc. engaged in misleading or deceptive conduct in publishing particular advertisements (or sponsored links) for advertisers in response to search queries. The ACCC’s argument was rejected at trial. The ACCC’s position was accepted at appeal in a unanimous decision delivered by Chief Justice Keane and Justices Jacobson and Lander. Corrs’ team led by Richard Flitcroft acted for the ACCC at trial and in the appeal. 

The decision is of relevance to search engine operators, businesses who use search engine advertising and publishers of advertising in other media. The decision provides guidance on the scope of the “publisher’s defence”, and when a publisher moves from simply passing something on, to in fact being active itself in the creation of an advertisement, so as to be liable for its content.

This note helpfully identifies the relevant ads that were the subject of the appeal, shows their layout and the search terms that generated them and the false or misleading representations which they conveyed.

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The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Richard Flitcroft

Partner. Sydney
+61 2 9210 6435