Dear Colleagues;
While not a "traditional" obligations decision, I think the liability for misleading and deceptive conduct created by former s 52 of the
Trade Practices Act 1974 (Cth) is close enough to a "statutory tort" to be of some interest here. The High Court of Australia in
Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 (6 February 2013)
http://www.austlii.edu.au/au/cases/cth/HCA/2013/1.html has today held that Google is not liable for such conduct in circumstances where the "sponsored links" it produces in response to a user's search are misleading and deceptive.
I think perhaps the strongest part of the ACCC's case (and why the Full Court of Federal Court had found against Google) was the fact that when a user typed in the name of one company (to give an example from the case, "Harvey World Travel"), in the list of sponsored links on the right of the results page there would appear a blue clickable link using almost the very words of the user's search, but linking to a competitor's website (here, "STA Travel".) Still, in the end all the 5 members of the bench agreed that this link was really generated by choices made by the advertisers who had signed up to Google's "Adwords" scheme, rather than by Google itself. (The relevant advertisers were found to have breached the Act by the trial judge, and this was not appealed.)
There is an interesting difference of opinion between the plurality, primary judgment of French CJ, Crennan and Kiefel JJ, which casts some doubt on some dicta from a previous decision of the Federal Court,
Universal
Telecasters (Qld) Ltd v
Guthrie (1978) 18
ALR 531 about liability for passing on misleading advertisements; and Hayne J, who suggests that
Guthrie is still binding. Heydon J also gives a separate judgment which on a first, quick, reading seems to agree with both!
Regards
Neil
Neil Foster
Associate Professor in Law,
Newcastle Law School;
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
Room MC177,