A Federal Appeals Court in Australia has found Google responsible for misleading ads that displayed when users searched for certain terms and received ads from competitors who had bid on those terms.
The ruling, though it only applies in Australia, is important because one of Google’s most central beliefs — which has come up in legal cases again and again — is that it is solely a publisher of content and advertisements, rather than the author of that content, and should therefore not be responsible for what appears on its pages.
The plaintiff in the case is the Australian Competition and Consumer Commission (ACCC), a consumer protection agency. Originally, Google had not been found responsible, but, on appeal, the Full Federal Court overturned the earlier ruling.
Is Google Just A Publisher, Or Does It Hold Responsibility For Content?
“The ACCC brought this appeal because it raises very important issues as to the role of search engine providers as publishers of paid content in the online age,” said ACCC chairman Rod Smith. The Court ordered Google to develop a program to comply with consumer law and to pay ACCC’s court costs.
At issue is who is responsible for the advertisements when Google displays them. is it Google, because its algorithm controls what displays when? Or is it the advertiser, who chooses the keywords associated with its ads?
The primary judge had originally found that, although the ads were misleading or deceptive, Google had not made the misleading or deceptive representations. Google merely communicated representations made by the advertiser.
What’s Critical Is The Triggering Of The Link
But now, the Full Federal Court is saying that’s not the case. It’s holding Google responsible as if it made the representations itself. In its ruling, the Court said, “the enquiry is made of Google and it is Google’s response which is misleading… Although the key words are selected by the advertiser, perhaps with input by Google, what is critical to the process is the triggering of the link by Google using its algorithms.”
In a statement, Google has said it’s reviewing its options:
“We are disappointed by the Federal Court’s decision that Google should be responsible for the content of four particular ads on its platform. Google AdWords is an ads hosting platform, and we believe that advertisers should be responsible for the ads they create on the AdWords platform. We’re committed to providing an advertising platform that benefits both advertisers and users. We investigate complaints about violations of our policies and terms and conditions, and if we are notified of an ad violating our terms and conditions we will remove it. We are currently reviewing our options in light of the court’s decision.”
Google’s Terms and Conditions for Australia say that the customer “is solely responsible for all: (a) ad targeting options and keywords (collectively “Targets”) and all ad content, ad information, and ad URLs (“Creative”), whether generated by or for Customer…”