Sponsored links appear alongside your search results and are
intended to suggest products or services that will interest you,
but which more often than not just look dodgy. And in Google
Inc v Australian Competition and Consumer Commission, 
HCA 1, they really were dodgy: the sponsored links displayed with
certain Google search results took the user not to the site he or
she was probably looking for, but to that of a competitor who had
signed up for Google's AdWords feature and paid to have its
site come up as the sponsored link. A user who searched for
'Harvey World Travel', for example, got a link to that
company in the search results, as well as a sponsored link to its
competitor, STA Travel. The trial judge found that the individual
advertisers who were behind sponsored links of this type had made
misleading or deceptive representations under Australian consumer
protection legislation, and this finding was not appealed. The
question on appeal was whether Google itself was also liable.
The trial judge rejected claims that Google had failed to make a
sufficient distinction between the content of the 'organic'
results of the user's search and the sponsored links, or had
itself made misleading representations. He reckoned that average
internet users would know the difference between the organic
results and the sponsored links. The Federal Court disagreed,
holding that it wasn't necessary for an intermediary like
Google expressly to adopt or endorse someone else's misleading
content and also that Google acted as principal (not conduit) in
the display of both organic and sponsored results. Considerable
reliance was placed on the fact that the sponsored link contained
text which was very close to the user's original search terms.
The High Court of Australia reversed, holding that the sponsored
links were generated essentially by the advertisers and not by
Google, which would have had difficulty in determining whether any
individual advertiser whose name (or name and URL) appeared in the
advertiser's sponsored link was a competitor or associate of
the party the internet user was actually looking for.
The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
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