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Aussie Court Realizes That Google Is Not Responsible For Content In Google Ads

from the good-ruling dept

Back in 2007, we wrote about a ridiculous lawsuit down in Australia, in which the Australian Consumer and Competition Commission (ACCC) was suing Google because other companies had purchased ads deemed to be "misleading" on Google. As we noted at the time, the ACCC seemed really confused about how Google worked, and the difference between being a self-service platform/tool and being a full-service advertising media company. While the ACCC ran into some trouble early on (its arguments were deemed "incomprehensible" by the first court) they actually won on appeal. The good news, however, is that the case moved up another level, and the High Court has overturned that decision with a pretty clear statement (pdf) on the basic issue:
Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.
This may not seem like a big deal, but as Ali Sternburg rightly explains, having strong protections for secondary liability is a huge part of why the internet is so useful and innovative. In simple terms, we don't blame third party service providers for misuses by their users, because that takes away massive incentives for the service providers to innovate in the first place. It chills innovation in a major way.
Safe harbors from secondary liability are essential for Internet platforms and businesses, and it is encouraging when other countries affirm these principles.
Unfortunately, some of these safe harbors have come under increasing attack over the past few years, as people who feel wronged go the Steve Dallas route, and assume that if they've been wronged, it makes sense to sue the company with the deepest pockets, rather than those actually responsible. But, when you do that, you create incredible incentives to effectively shut down any open platforms, because the threat of liability is just too risky. The stifling effects are enormous, whereas the benefit from protecting platform providers from liability for users' actions is tremendous. And, no, this doesn't mean that illegal activity is allowed. It just means that liability is properly focused on those who actually break the law.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Josef Anvil (profile), Feb 12th, 2013 @ 12:38am

    Why is this so confusing?

    I just don't understand why this is so confusing for people. Fact #1: The internet is a COMMUNICATION platform, just like the telephone.

    Fact#2 Google is NOT the internet, it's a search engine. It indexes websites like the card catalogue in a library.

    Is that so hard to comprehend?

    If you wouldn't sue your phone company for the misconduct of its users then you shouldn't sue internet service providers for the same thing. If you wouldn't sue your library because someone left misleading advertising on display in public, then you shouldn't sue Google for the same thing.

    NB: The internet is not some magical thing that turns shit that we already know how to do into new patents.

     

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  2.  
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    Nimas, Feb 12th, 2013 @ 1:48am

    Oh huzzah, I'm glad. I'm glad at least some in my country have at least some understanding of the internet.

    Though it is a shame that it was the ACCC which had no clue in this matter, I had previously thought they were quite good at protecting consumer rights.

    Perhaps they were at one point, and hopefully they will be again (alas pointless optimism).

     

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  3.  
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    The Old Man in The Sea, Feb 12th, 2013 @ 1:51am

    Thick skin - Thin Skin and the ACCC

    The role of the ACCC is to protect the general population from the dodgy ratbags that go around conning everyone they can. However, they seem to have lost the plot over the last decade or so.

    Too much americanisms have encroach upon us and there are various segments that are going the way of you yanks and suing the hell out of anyone they can. It has moved away from pollies and such to various prominent (and not so prominent) people in their fields (including doctors and such).

    It used to be that being an aussie meant that you had a thick skin and would lose it only when compared to poms, kiwis and yanks. But they are now teaching people that you shouldn't have thick skins but have thin skin instead.

    If someone calls me a drongo, who cares. If they insult my wife that's a different matter (why sue them when a kick up the backside will do instead) but who cares what they call me.

    regards to all

     

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  4.  
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    Zakida Paul (profile), Feb 12th, 2013 @ 2:26am

    Re: Why is this so confusing?

    Couldn't agree more. Pity I can only give one insightful vote.

    It just goes to show that ambition can get you in trouble. If you work hard to become one of the biggest Internet brands out there (like Google has) then you open yourself up to all manner of attacks from all over the place.

    Sadly, it seems, mediocrity is the safest bet in Internet related businesses.

     

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  5.  
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    That Anonymous Coward (profile), Feb 12th, 2013 @ 3:00am

    Re: Thick skin - Thin Skin and the ACCC

    You should have been concerned when they didn't run AFACT out of the country.

     

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  6.  
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    G Thompson (profile), Feb 12th, 2013 @ 4:31am

    Re: Re: Thick skin - Thin Skin and the ACCC

    Oh believe me a fair few of us think AFACT should be stripped of their organisational name since it is highly misleading since the CT stands for "Copyright Theft" and there is no such thing legally nor any other way.

    Thankfully The ACCC doesn't have the mandate for this, though our ASIC and Fair Trading Dept's in each state do and since the misleadingly named "Australian Vaccination Network" (it actually is one of those stupid orgs that want to stop all types of vaccinations) has just been stripped of their name we have some high hopes now that AFACT might be next.

    Oh and the millions of dollars they (AFACT) had to pay in legals has sort of made their puppet masters think twice about coming into Australia.. so it was a win win on that regard ;)

     

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  7.  
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    That One Guy (profile), Feb 12th, 2013 @ 4:34am

    Re: Why is this so confusing?

    Personally I blame the various 'entertainment' protection rackets.

    They spend so much time going on and on about how all the ills of the net are Google's fault, and how Google should be able to fix everything with no problem, it's gotten to the point that both they, and the idiot politicians that listen to them are starting to believe that Google is the internet, and not just a search engine.

     

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  8.  
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    Anonymous Coward, Feb 12th, 2013 @ 4:44am

    bob is in tears right now.

     

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  9.  
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    Anonymous Coward, Feb 12th, 2013 @ 5:19am

    The view that Google is equivalent to talking on a telephone is simply false. Most, not all, but most telephone calls are person to person. There are calls that allow networking but one must dial into be a party. This is not what the internet or Google is.

    On the other hand there is radio and television which transmits to large unknown, to the station, audiences. One may tune in or tune out as one chooses without the station knowledge of an individual action. Well the internet has the tune in and tune out part but is lacking in user animosity.

    Mass broadcast media in most parts of the world is regulates some what more than it is in the US because experience has proven that given a chance stations will scream fire in a crowded theater in order to line their own pockets simply without regard to the negative impact to those being trampled at the door. The US simply has not learned the lesson of destruction caused by the lies and scams of mass media yet. We have not gone through a WW2 on our territory. The closest we come is the Civil War well before the age of mass communication by air waves.

    For question "Should a telecom be held liable for action of its users when the telecom has no part in the presentation?" the answer is clearly no.

    But what of those that put on the presentation? Should a presenter be held responsible for the presentation if the presentation subcontracts part of the presentation to a third party? Did the presenter get paid for this? Or was a payment made? If money was exchanged it is clearly a commercial venture.

    Who should be held responsible if a movie theater made a payment for a performance a performance that resulted in a number of deaths in the same manor as the band that burned down the Brazilian night club resulting in over 200 deaths last month? Was the planed performance made with the full knowledge of the club owner? One would have to say yes as the band was noted for that class of performance. The Brazilian authorities arrested both surviving members of the band and both club owners.

    Back to Google. Who put on the performance? Did Google get paid for allowing someone else to take over part of the performance? If the answer to both of these questions is yes then it is clear that Google is as liable for the actions of the add in performance as the people who performed the add in performance just as both the owners and the band are both responsible for the fire.

     

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  10.  
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    Josh in CharlotteNC (profile), Feb 12th, 2013 @ 5:56am

    Re:

    On the other hand there is radio and television which transmits to large unknown, to the station, audiences.

    Google is nothing like broadcasters. Radio/TV is a one-to-many platform. I personally wouldn't compare Google to a telephone company, either - telephones are a one-to-one platform. The internet is a many-to-many platform, and Google is just a small part of it.

     

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  11.  
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    Zakida Paul (profile), Feb 12th, 2013 @ 6:06am

    Re:

    Google are the equivalent of a library indexing system helping users find what they want more easily.

    You would never hold a library responsible if their indexing system were used to find something undesirable. Why should Google be held responsible for the same thing?

     

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  12.  
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    Anonymous Coward, Feb 12th, 2013 @ 6:06am

    Re:

    On the other hand there is radio and television which transmits to large unknown, to the station, audiences

    1) Google is an Index, just like a library catalogue.
    2) Google does NOT exercise editorial control, unlike a TV station.

     

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  13.  
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    Anonymous Coward, Feb 12th, 2013 @ 7:04am

    Umm...

    Stupid question: why do third parties have secondary liability? Shouldn't they either have tertiary liability or be second parties?

     

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  14.  
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    TroutFishingUSA, Feb 12th, 2013 @ 8:39am

    Re:

    Well the internet has the tune in and tune out part but is lacking in user animosity.


    Oh, I don't know about that. The internet sure seems chock full of user animosity, if you ask me.

    Anyway, I think it's a little naive to simply designate Google an index or a card catalog system. The company does much more than offer search results. They control almost half of the global online ad market, and 96% of their revenue is from advertising. I don't know about you, but I never came across any advertisements in the library card catalog system.

     

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  15.  
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    Anonymous Coward, Feb 12th, 2013 @ 10:43am

    On the OTHER hand, secondary liability would be nice as a way for advertisers to have incentive to clean up their act.

    They've ruined their own industry by showing ads with viruses, and tons of misleading or downright lying ads. "You're the millionth visitor!" No, I'm not. How is it that the FCC hasn't shut that down? "Win a free IPad!" Sure, I just have to buy something and then get several of my friends to join your multi-level marketing scheme. Or the ads that are visually indistinguishable from a Windows dialog box, trying to get the uninformed to unwittingly click. Are you telling me the ad companies are incapable of doing basic screening? I mean, I don't expect them to do a full background investigation of the company, but lots of these should be rejected on their face. I wouldn't fault the postal service if they inadvertently delivered a letter bomb, but I WOULD fault them if they delivered a bunch of round ticking packages with "DIE!" written on the side and a return address of Al-Qaeda.

     

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  16.  
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    Anonymous Coward, Feb 12th, 2013 @ 11:28am

    Re: Re:

    I disagree. Part of Google, Google search for instance, does indexing, a different part of Google produces content.

    If pure search content is being displayed with out adds then you have no creative input. But, if you add ads then you add a creative component to the page which means that fist the page has became commercial and second there is editorial discretion added. The adding of editorial discretion should also add liability.

     

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  17.  
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    Bergman (profile), Feb 12th, 2013 @ 5:57pm

    Re: Re: Re: Thick skin - Thin Skin and the ACCC

    In order to steal a copyright, you'd have to somehow prevent the owner from making any more copies of their own.

    The story recently about someone reposting articles and then using DMCA to get the originals taken down, now THAT is actual copyright theft!

     

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  18.  
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    Josef Anvil (profile), Feb 13th, 2013 @ 2:16am

    Re: Ok now I see why this is so confusing

    It's confusing, because people seem to lack basic reading comprehension skills.

    "The view that Google is equivalent to talking on a telephone is simply false."

    Umm yeah it is false, but then no one said that. What was said is that the internet is a communications platform like the telephone system is a communications platform and that Google is not the internet. Yet somehow your reading comprehension involved seeing Google and telephone as analogous. smh

    As for the leap to liability because they got paid. Think gun manufacturers.

     

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