As you may know, Google have been dodging the bullet when it comes to selling adwords and allegations of misleading and deceptive conduct, but in a recent case, the Federal Court has found them guilty of misleading and deceptive conduct for its placement of ads. This case will have huge implications for the SEO industry and the online advertising field, which is largely controlled by Google, so read on as it could have implications for you if you advertise online.
The ACCC has been pursuing Google for a while now for allowing ads of competitors to be shown when a search for a rival company is done. Google allows keywords to be bought by rival companies, as had occurred with Honda, Harvey World Travel, Alpha Dog Training and Just 4x4s, to name the examples from this most recent case.
What the court found was that Google were actively involved in the process of allowing advertisers to take advantage of their competitor’s keywords. Of course, Google’s defence has always been to argue that they are merely the hosting platform, and that it’s the advertiser that should be responsible for the advertisements that are created. And 5 years ago the courts initially agreed that although the ads were misleading and deceptive, it wasn’t actually Google’s responsibility.
But the courts this time round on appeal have disagreed. They have found that Google were “much more than a mere conduit” and that “a party may engage in misleading conduct …without an intention to mislead or deceive.” The Full Court found that even though it is the advertiser that picks the competitor’s keywords, it is Google’s response which is misleading, noting that “what is critical to the process is the triggering of the link by Google using its algorithms.” The issue is that it’s Google’s technology and their system that creates the search result, and Google’s staff are there to help advertisers take full advantage of that system. And this is precisely what’s got them in hot water when it comes to our Trade Practices laws.
This decision is an important warning if you are an SME using Google as an advertising platform, if you organise this sort of marketing on behalf of your clients, or if you believe your competitors might be making inappropriate use of your keywords.
As ACCC chairman Rod Sims has warned, “This is an important outcome because it makes it clear that Google and other search engine providers that use similar technology to Google will be directly accountable for misleading or deceptive paid search results.” So have a think about what you are doing with your keywords with search engine providers, and contact us if you have any concerns.
