This article discusses the much anticipated decision of the High
Court in relation to whether Google was liable for misleading or
deceptive conduct through its AdWords programme.
In our previous article
Google Adwords on Trial: ACCC Establishes Misleading or Deceptive
Conduct we discussed the decision of the Full Federal Court,
which found that Google was liable for misleading or deceptive
conduct as a result of the purchase and use of words associated
with a business of a competitor of the Google customer. That
decision has been overturned by the High Court.
To recap, when a user typed into the search engine "alpha
dog training" the first sponsored link that user would see
would be the heading "alpha dog training" but this link
would direct the viewer to Alpha Dog Training's competitor
Ausdog. ACCC claimed that this, and other similar conduct,
constituted misleading or deceptive conduct by
Google in breach of the Trade Practices Act 1974
(now the Australian Consumer Law).
There is no doubt that the conduct by the advertising business,
which purchased the words associated with a competitor business, is
engaging in unlawful conduct. This was again confirmed by the High
However, the High Court determined that Google has no
responsibility for the links, or the wrongful association between
key phrases and business. Google merely passes on the information
it was provided from the advertiser and was not engaging in any
misleading or deceptive conduct.
WHAT THIS MEANS FOR BUSINESS OWNERS
Whilst the decision is good news for Google, it means that users
of the AdWords programme (or any advertising programme via a search
engine service) must be extra vigilant with the terms that it uses
to advertise its goods and services so as to not mislead or deceive
consumers, or engage in conduct that is likely to mislead
or deceive consumers. It is important to remember that you
don't have to intentionally mean to mislead or deceive
consumers in order to be in breach of these provisions.
Without careful scrutiny of the terms used for a programme such
as AdWords, business owners could easily fall fool of the consumer
protection provisions under the Australian Consumer Law.
This form of reaching out to potential consumers, and promoting
your goods or services, is no different to any other form of
advertising or marketing communications that you might use, where
marketing clearances are a must!
The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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