More Misplaced Google Ad Lawsuits… This Time In Australia

from the everybody-sue-Google-now dept

Just as Google has settled the longstanding keyword trademark lawsuit from American Blinds (and as a new one starts up from American Airlines) in the US, it appears that Google is facing a similar challenge down under. The Australian Consumer and Competition Commission is suing Google for supposedly deceptive ad practices, but the details suggest that perhaps the ACCC is a bit confused. It seems to be complaining about a few different things, and it’s worth separating those out. First, it appears that an organization named Trading Post, which appears to be an online classifieds site, bought deceptive ads on Google, pretending to be local Australian car dealerships. This can absolutely be seen as trademark infringement if the ads were (as the ACCC accuses) made to look as if they pointed directly to the dealership websites, rather than a Trading Post page. However, the infringement is by Trading Post — not Google. ACCC is suing both, but it’s hard to see why Google should be responsible for the actions of an advertiser.

The second complaint is even more bizarre. ACCC claims that Google hasn’t done enough to distinguish the top ad slots from the organic search results. That seems like a stretch. Google has always done a good job highlighting and marking the listings that were ads, and you’d have to have pretty bad eyesight not to realize which slots are for ads and which are for organic listings. Nevertheless, ACCC claims that Google does not make this clear and that people would think the sponsored listings were the top organic listings. Of course, it’s hard to see how they can back that up, since the sponsored slots are so well marked. However, why let little things like facts get in the way of a chance to sue the almighty Google?

Update: Well, that was fast. It looks like the judge in the case agrees with us, as he wasted no time slapping down the ACCC’s arguments as “incomprehensible,” “opaque,” and “somewhat repetitious.”

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Comments on “More Misplaced Google Ad Lawsuits… This Time In Australia”

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Anonymous Coward says:

In many cases, this is a fine line and I am not sure where that line should be drawn. It seems to me that the company that is actually hosting the ad has some level of responsibilty for the content they are posting.

Certainly the source placing the ad has the ultimate responsibility for the content they draw up and place. However, the person/company that is actually making the ad viewable has some level of responsibility to ensure that the content is OK.

For example, if I were to take out an ad for “hitman” or some other illegal activities, I would ultimately be responsible for the source of that content and services provided. However, if Google actually ran that ad, then they too bear some responsibilty if anything bad were to happen because of it since they should have had the common sense to determine that this was innappropriate content to post.

If they are going to be in the “ad” business, they should have someone ensuring that the content is acceptible to post before posting.

If the services provided are not illegal but are deceptive, then they should bear no responsibilities for any errors or accuracies of the content (unless of course the error was caused on their part due to incorrect processing of correct data). I would not expect them to verify the accuracy of content provided. If they are not offering design services as part of the ad placement, then they are not responsible if the site is misleading. However, if they are offering design services, then certainly they do bear some responsibility for the asthetic/accuracy of the content.

To say they bear no responsibilities just because they “hosted” the data is a slippery slope. Where do you draw the line? “It’s not my fault, they placed the content”… not to offend anyone, but this is a similar argument used by War Criminals…”It’s not our fault, we were just following orders”.

Ben (user link) says:

Is that even illegal?

Umm, if I start a web-search company, and sell the top three slots of every search, and DON’T distinguish them from the results below, is that even illegal?

If I have a web-search company, don’t *I* get to decide what criteria I use to search? What if my criteria are “the company which pays me the most money is the most relevant to the searcher, and I will list them first.” There’s no law about how a search algorithm can work, is there?

Voice of Reason says:

Re: Is that even illegal?

Yeah, it may not be illegal (I don’t know the exact specs), but isn’t it more ethical to let your searchers know whether it is a more common site, or a site that paid more money? That’s what I like about google. They easily distinguish their ads from hits (or at least I can tell the difference).

Rob says:

the second half of the suit

I agree that google has always made it quite clear to me where the ads start and the search results start. However, let’s assume for a second that google gets taken over tomorrow and suddenly starts allowing people to pay for the top search results.

Clearly that would degrade the quality of the search results and anger many people, but in what way is that illegal? I’m not aware of any laws that prohibit deception alone. They all target some specific type of deception (e.g. fraudulent checks, intentional trademark infringement, etc).

Does Australian law permit you to sue someone because their website doesn’t contain what you expect it to contain?

Is there an implied contract that search results will be “good”? Who gets to decide that?

Mike’s comments above only counter the claim itself, not the assumption that the claim entails an illegal activity. If google was in fact allowing sponsored ads to show up seamlessly in the results, would that even be illegal? It’s deceptive and immoral but I could spend all day coming up with things that are deceptive and immoral that aren’t illegal.

JEQP says:

I agree with you that it’s a silly thing to go to court over, I just wanted to point out that the ACCC is an “independent statutory body”, effectively a government regulatory body, and it’s not doing this to get money (which is what I think when I see the words “sue” and “lawsuit”, although I know that’s not always the case). Of course, if they win there could be fines for Google, but I don’t think they’ll win.

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