LAW101 Business Law- Australian Consumer Law
Question
- Illustrate the principles relating to the law of torts; and
- Explain the principles relating to contract law.
Answer
Issue
The issue of the provided case study is the action Australian Competition And Consumer Commission (the ACCC) took towards Google for providing search results of misleading and deceptive conduct pursuant by an advertiser web address according sec-52 of the Trade Practices Act (now sec-18 of the Australian Consumer Law) is that an offence?
Rule
According the case study, Australian Competition and Consumer Commission (the ACCC) made an complain towards Google where they told Google made an offence of misleading or deceptive conduct contrary according to sec-52 of the Trade Practices Act . However, High Court establishes a judgment that they did not hold themselves for misleading or deceptive conduct or accept any statement, which showed or displayed in search result. According to the sec- 18 of the Australian Consumer Law (before sec-52 of the Trade Practices Act 1974) prohibits the conduct in trade or commerce which misleading or deceptive . Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 [52 of the Trade Practices Act 1975 (Cth)] and Butcher v Lachlan Elder Realty Pty Ltd are famous cases where the importance of sec 18 of the Australian Consumer Law established its facts that how the companies who are related in advertisement business has involved in misleading and deceptive conduct.
Analysis
The sec 18 of the Australian Consumer Law, which was previously known as sec-52 of the Trade Practice Act 1974 is, the prohibitions of conduct of misleading or deceptive facts. By misleading, any facts in advertisement may cause harm to the consumers who are getting services from the production. The misleading and deceptive conduct, which is provides unlawful services. Providing unlawful business through any website, which is, used free searches. Any advertisement company never provide any misleading or deceptive conducts through their advertise which could be the reason of negative response from consumer.
Google Inc is one of the company, which operate free search engine named as’ Google’ which internet related some services included online advertisement , software, hardware . It provides the rights to the advertiser to show their advertisement of relevant content or their own contents which also known as AdWords . When someone typed any words in Google search engine, the websites provide related facts to the internet users featuring the Google-partnered page where advertisement is also showed. Actually, this search engine produces sponsored links, which are highlighted paid advertisement, and organic links those are displayed free. When a Google user opens an organic link, he found some web pages related to the fact then the web pages links provide the sponsored link through AdWords programming.
Here, Google Inc v Australian Competition and Consumer Commission [2013] case the Australian Competition And Consumer Commission (the ACCC) brought an complain against Google where they told that Google made an offence according sec-52 of the Trade Practices Act 1975 (Cth) . This includes some sponsored links searches related to: “Harvey World Travel”, “Honda.com.au”, “Alpha DogTraining” and “Just 4x4s Magazine”. The Australian Competition and Consumer Commission (the ACCC) said that Google breach the section of 52 of the Trade Practices Act 1975 (Cth) because that sponsored link displayed an advertisement which contain the of misleading or deceptive conduct . “Section 52(1) of the Trade Practices Act provided that ‘A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive”.
The ACCC argued because they thought Google was involved in misleading or deceptive conduct where that program software allowed adviser include the name of the sponsored link of the Advertiser Company, which was misleading or deceptive conduct. However, Google was not liable for the act because it has not allowed that or not involve in misleading representations of the advertisers .
The trial Judge Nicolas J found that Google is not responsible for the act and reject the ACCC’s application. They found that STA Travel, Carsales, Ausdog and Trading Post advertisement is not disputed of misleading or deceptive facts. The advertisement that showed is falsely presented between the advertiser and the businesses that had been searched. The Australian Competition and Consumer Commission again applied to the Full COURT of the Federal Court according the section of 52 of the Trade Practices Act 1975 (Cth). In the High Court the Judges French CJ, Crennan, Kiefel JJ gave their joint judgment and Hayne and Heydon JJ gave their separate judgment for the following matters.
French CJ, Crennan, Kiefel JJ jointly present that Google is not responsible of any misleading or deceptive conduct. Google is a free online search engine, which establishes a communication between advertisers and consumers where it published, present, or broadcast the advertisement through adviser. It only provides the information according the user’s search, which did not make Google any originator for the sponsored link.
Hayne J stated in his judgment that the Australian Competition and Consumer Commission (ACCC) established the fact they have made against Google about misleading or deceptive conduct is never been accepted. Because Google is unable to understand to engaging in misleading or deceptive conduct and its users also not understand how they present their information.
Heydon J found in the case of Google Inc v Australian Competition and Consumer Commission [2013] that the Full Court of the Federal Court had made a mistake in the law and an error of the related fact. He stated his judgment that the court was created an error about how Google used the sponsored link in their business.
In every judgment, we can see that judges make decision against Australian Competition and Consumer Commission. They failed to prove that Google is liable for the deceptive conducts and make an offence of sec 52 of the Trade Practice Act (now sec 18 of the Australian Consumer Law). Heyne J explained his judgment using publisher defense [sec 83(3)] where he stated that the defendant always defense himself for his business and Google also publish the advertisement for the publication and did not recognized that the advertisement was provide deceptive conduct. In this judgment we can follow that, Google who is the defendant, have been found to do an offence of sec- 52, in relation with misleading and deceptive conduct and sec- 85(s) which established a potential defense. This sec protects those defendants who are involved in the offence of sec -52 of the Trade Practice Act .
However, again that court rejected ACCC’s application that Google is involved in misleading or deceptive conduct. The High Court established that Google only published the sponsored links which user searched but they never endorse them. The allegation about showing deceptive conducts is false. The High Court establish the judgment by following Butcher v Lachlan Elder Realty Pty Ltd case where they pointed that sec-52 of the Trade Practices Act provide only particular facts as basis of general rules. Google provide only that information, which users searched. Those advertisements they showed in the web results are also provided according the users searched for. s
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 [52 of the Trade Practices Act 1975 (Cth)] is another famous case where the importance of sec 18 of the Australian Consumer Law established its facts that the company which is related in advertisement business had involved in misleading and deceptive conduct. In this case the Australian Competition and Consumer Commission (ACCC) sue TPG Internet Pty Ltd for contains misleading and deceptive conduct in a advertisement. For this offence, the judge gave a penalty order to the company. The TPG Internet Pty Ltd applied to the Full Court and penalty was reduced amount of $50,000.
In France SARL v. Louis Vuitton Malletier SA is another famous case of AdWorks that related with the Google Inc v Australian Competition and Consumer Commission [2013] case. In this case, when internet users used Louis Vuttion trademarks, the website showed the AdWorks, which provided the sponsored links through advertisement, are conduct of misleading and deceptive. Here the advertiser may copy the Louis Vuttion’s trademarks. The French regional court established some facts that Google had infringed over the trademarks of Louis Vuttion. However, European Court of Justice confirmed that Google had not copied those trademarks on its own.
In United Kingdom, Interflora Inc. and Interflora British Unit v Marks and Spencer Plc and Flowers Direct Online Limited is a case of another AdWork and trademark. It stated that in Google France or Google Inc v ACCC cases Google was not liable for any deceptive conducts, the advertiser who produce and supply the advertisement. Therefore, there are lot of differences between natural search results and paid advertising through a free search engine. In this case of Interflora Inc. and Interflora British Unit v Marks and Spencer Plc and Flowers Direct Online Limited the UK court gave judgments the users from UK not a significant internet users rather than free users.
Conclusion
In this case study, the the Australian Competition and Consumer Commission (ACCC) tried to stated in their complains. That Google made an offence of misleading and deceptive conduct of sec- 52 of the Trade Practice Act. However, High Court rejected that cases and Google found innocent in the joint judgment by the Judges French CJ, Crennan, Kiefel JJ, Hayne and Heydon JJ . In the AdWorks the companies gives services according the users search. Sometimes the sponsored links provide the advertisement, which give information of misleading and deceptive conducts.
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