Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086 Citation: Australian Competition and Consumer Commission v Trading Post Australia Pty Ltd [2011] FCA 1086

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TRADING POST AUSTRALIA PTY LIMITED (ACN 001 821 156) and GOOGLE INC

File number: NSD 1323 of 2007

Judge: NICHOLAS J

Date of judgment: 22 September 2011

Corrigendum: 10 October 2011

Catchwords: TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of "sponsored links" displayed on search results page in response to search queries – whether provider of internet search engine engaged in conduct that was misleading or deceptive or likely to mislead or deceive by failing to adequately distinguish between advertisements and organic search results – consideration of expression "sponsored link" – whether provider of internet search engine made implied representations that sponsored links were not advertisements – whether provider of internet search engine made implied representations that sponsored links were organic search results – whether provider of internet search engine made implied representations that position of sponsored links on search results page was the result of their relative relevance to search queries as determined by the search engine – consideration of layout of search results page – consideration of relevant class of consumer – consideration of impact on ordinary and reasonable members of relevant class of consumer TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where advertisers sought to promote their goods or services by means of sponsored links on search results pages – where headline of sponsored link replicated third party's business name, trade mark or website address – whether advertiser made implied representations of association or affiliation – consideration of relevant class of consumer – consideration of impact of sponsored links on ordinary and reasonable members of relevant class of consumer – whether representations conveyed were misleading or deceptive or likely to mislead or deceive – whether search engine provider also made implied representations of association or affiliation by publishing sponsored links or by adopting or endorsing representations conveyed – significance of "keyword insertion" when used to generate headline which replicated terms of search query TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of "sponsored links" displayed on search results pages in response to search queries – where sponsored links conveyed misleading and deceptive representations – whether search engine provider had a defence under s 85(3) of the Trade Practices Act 1974 (Cth) (the Act) – whether advertisements in the form of sponsored links were advertisements received by the search engine provider in the ordinary course of business – whether search engine provider knew or had reason to suspect that publication of advertisement would amount to contravention of s 52 of the Act – whether search engine provider could discharge onus of proof without showing that it took reasonable precautions or exercised reasonable diligence to avoid such contravention