Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185

FEDERAL COURT OF AUSTRALIA

Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185 Appeal from: Australian Competition and Consumer Commission v Trivago N.V. [2020] FCA 16

File numbers: VID 149 of 2020 VID 150 of 2020

Judgment of: MIDDLETON, MCKERRACHER AND JACKSON JJ

Date of judgment: 4 November 2020

Catchwords: CONSUMER LAW – misleading or deceptive conduct – where website aggregates a list of hotel offers in response to a consumer search – where multiple offers provided for each hotel listing – where one offer is displayed more favourably as the Top Position Offer – whether the Top Position Offer was the cheapest offer or had some other characteristic which made it more attractive than any other offer – whether the Top Position Offer and a more expensive Red Price or Strike-Through Price positioned above it provided a "like-for-like" comparison – whether text contained in hover-overs and click-through links dispelled the impressions created by the website's layout and television advertising – whether the role of the payment mechanism between the website and hotel offerors in determining the ranking of offers was adequately disclosed to consumers – whether it was represented that the website provided an impartial, objective and transparent price comparison service

Legislation: Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth) ss 18, 29(1)(i), 34

Cases cited: Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 2) [2017] FCA 709 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130 Australian Competition and Consumer Commission v Valve Corporation (No 3) (2016) 337 ALR 647; [2016] FCA 196 Holloway v McFeeters (1956) 94 CLR 470 Luxton v Vines (1952) 85 CLR 352