Misleading and Deceptive Conduct and the Internet: Lessons and Loopholes in Google Inc v Australian Competition and Consumer Commission

Abstract

In recent years, the jurisprudence on s. 18 of the Australian Consumer Law as it applies to advertising on the internet has grown rapidly. In a continuation of this trend, the Australian Competition and Consumer Commission instituted proceedings against the global giant Google Inc, as well as some of its advertisers, for conduct it alleged was misleading and deceptive. The test case, which eventually went before the High Court of Australia, was unsuccessful and the Commission failed in its claim that the search engine operator was responsible for the publication of misleading and deceptive statements contained in its sponsored links, although the advertisers themselves were found liable. While the outcome is largely consistent with existing precedent in Australia so far as it relates to the liability of publishers of misleading and deceptive conduct, the decision leaves several important questions unresolved.

Keywords: advertising, trademarks, trade marks, Internet, Google, Australian Competition and Consumer Commission

JEL Classification: K10, K19