• Enjoy the freedom to innovate and grow your business

    [ad] With Microsoft Azure you have hybrid cloud flexibility, allowing your platform to span your cloud and on premise data centre. Learn more at microsoftcloud.com.

  • IT Admin: No Time to Save Time?

    [ad] Do you spend too much time patching machines or cleaning up after virus attacks? With automation controlled from a central IT management console accessible anytime, anywhere – you can save time for bigger tasks. Try simple IT management from GFI Cloud and start saving time today!

  • Free Forrester analysis of CRM solutions

    [ad] In this 25 page report, independent analyst house Forrester evaluates 18 significant products in the customer relationship management space from a broad range of vendors, detailing its findings on how CRM suites measure up and plotting where they stand in relation to each other. Download it for free now.

  • Great articles on other sites
  • RSS Great articles on other sites

  • Reader giveaway: Google Nexus 5

    We’re big fans of Google’s Nexus line-up in general at Delimiter towers. Nexus 4, Nexus 7, Nexus 10 … we love pretty much anything Nexus. Because of this we've kicked off a new competition to give away one of Google’s new Nexus 5 smartphones to a lucky reader. Click here to enter.

  • Analysis, Internet - Written by on Monday, February 11, 2013 16:26 - 13 Comments

    Google – and everyone else – wins by High Court decision

    This article is by Stephen King, Professor in the Department of Economics at Monash University. It was first published on The Conversation and is re-published here with permission.

    analysis The High Court has ruled that Google did not engage in misleading and deceptive conduct when it published a number of advertisements created by its AdWords program. Does this mean that the advertisements themselves were not misleading and deceptive? No! Everyone agrees that they were. Rather, the decision clarifies the law for publishers, including those using the internet.

    When an advertisement is published, either in a physical form or online, it involves three parties: the advertiser, the publisher and the consumer. Section 52 of the Competition and Consumer Act (CCA) makes it illegal for a corporation to engage in misleading or deceptive conduct, including through advertising. However, section 85(3) of the CCA provides a “publishers’ defence”.

    A publisher does not engage in illegal conduct if, in the normal course of business, it publishes a misleading or deceptive advertisement but had no reason to suspect that the advertisement was illegal. Further, legal precedent accepts that “[t]he innocent carriage of a false representation … where the carrier is and is to be seen a mere conduit” does not make the ‘carrier’ liable for the false or misleading representation (High Court decision at paragraph 12).

    The publishers’ exemption makes sense. If publishers had to verify the content of every advertisement, it would bring the advertising industry to a shuddering halt. Publishers would not have the information or the ability to verify all advertisements and they would either be forced to significantly limit advertising or hope and pray that advertisers were doing the right thing. Of course, the exemption does not apply to the advertisers themselves. If they advertise in a false or misleading way, then they have breached the law. It only applies to the ‘conduit’ or publisher for the advertisement.

    So, back to the High Court’s decision.

    Between 2005 and 2007, Google’s Adwords was used by a number of companies to create “sponsored links” that were displayed on Google’s search pages. These advertisements were misleading and deceptive. The relevant advertisers have already been dealt with for breaching the CCA. The matter before the High Court, however, concerned whether:

    “Google (as distinct from the advertisers to whom the sponsored links belonged) engaged in misleading and deceptive conduct by publishing or displaying the sponsored links” (judgement, paragraph 3).

    The publishers’ and “innocent conduit” defences seem to imply that Google had not broken the law. However, the Australian Competition and Consumer Commission (ACCC) were not so sure. According to the ACCC, the AdWords technology meant that Google had a role in making or creating the sponsored links. Google did not simply “receive” and “publish” the advertisements. It was intimately involved in providing the program that made the misleading advertisements possible. So, by this argument, Google was neither just a publisher nor “innocent conduit” but an active party to the misleading and deceptive behaviour.

    And this is not a bad argument. Indeed, the Full Federal Court agreed. The Full Federal Court stated that Google was more than a publisher because the advertisements were displayed in response to a consumer’s search request. The Court concluded, “Google’s conduct in response to the user’s interaction with Google’s search engine was misleading”.

    I discuss this earlier decision more fully here.

    The High Court has disagreed. The AdWords technology “merely assembles information provided by others”. It “does not render Google the maker, author, creator or originator of the information in a sponsored link”. As such, “Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online) …”. Google simply provides “a means of communication between advertisers and consumers” (judgement paragraph 69).

    So the High Court has clarified the situation for Google and other internet intermediaries. They are publishers with the rights and obligations of publishers, but no more. This is a good thing. If the earlier decision of the Full Federal Court was upheld it would have created a legal quagmire for online publishers. So not just Google, but all online publishers, were winners from the High Court decision.

    Some media commentators have suggested that the law should now be changed. This is wrong. The High Court’s decision makes it clear that online publishers have the same rights and obligations as bricks-and-mortar publishers. The fact that they use a different technology does not change that.

    Some commentators have suggested that it will be harder to prosecute misleading and deceptive online advertising. This is wrong. The High Court’s decision was about the online publishers’ obligations. The advertisers still face the same rules for misleading and deceptive behaviour.

    It has been claimed that the decision is a “loss for consumers”? Again, this is wrong. It is a win for publishers and means that the consumer protections for physical advertisements also hold for online advertising. But there is no greater obligation created just because advertising on the internet uses a different technology.

    Was the ACCC wrong for taking the case? In my opinion, it was not. The ACCC had a good argument and the law needed to be tested. This is one of the roles of the ACCC.

    So who lost from the High Court’s decision? Well, actually, no-one. The decision has created clarity of the law and that benefits everyone, including the competition regulator.

    Stephen King is a former Member of the Australian Competition and Consumer Commission. He has also received research funding from Google.

    This article was originally published at The Conversation. Read the original article. Image credit: Robert Scoble, Creative Commons

    The Conversation

    submit to reddit


    You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

    1. Posted 11/02/2013 at 4:54 pm | Permalink |

      Asking Google to remove offending sponsored links was one of the banes of my existence when I was an in-house marketing manager. We’d fire off letters and emails to both Google and the offending advertiser.
      Every couple of weeks, there would be someone new ‘trying it on’ and popping up in the sponsored listings.
      There was a sense of Groundhog Day about it all – and now it’s only going to get worse. http://explorecomms.com.au/2013/02/06/google-wins-australian-high-court-adwords-battle/

      • Posted 11/02/2013 at 5:05 pm | Permalink |

        Welcome to my world. There are dozens of sites out there doing RSS feeds of Delimiter and popping up in search results. Eventually I just gave up trying to stop it …

        • Trevor
          Posted 11/02/2013 at 5:13 pm | Permalink |

          Sounds like an area ripe for a new piece of security kit to aggregate all the offending sites, create a detailed report and ask for permission to send it off to aome appropriate body

        • Trevor
          Posted 11/02/2013 at 5:14 pm | Permalink |

          Sounds like an area ripe for a new piece of security kit to aggregate all the offending sites, create a detailed report and ask for permission to send it off to some appropriate body to process and enforce copyright violations…

          • Posted 11/02/2013 at 5:44 pm | Permalink |

            There is no “appropriate body” when the sites are hosted in Russia …

            • Trevor
              Posted 11/02/2013 at 7:20 pm | Permalink |

              True… Pity ICANN or similar won’t just block DNS to them or something :-\

    2. David Brooks
      Posted 11/02/2013 at 5:29 pm | Permalink |

      So, “…but had no reason to suspect that the advertisement was illegal…” ignorance of the law is an excuse! And the High Court says so.

      Will this decision trickle down to the poor sods in the local courts who get told that “ignorance of the law is no excuse” and who don’t have multi million $ lawyers to defend them?

      • NPSF3000
        Posted 11/02/2013 at 11:45 pm | Permalink |

        There’s a difference between being ignorant of the law, and ignorant of the fact x, y or z is breaking law.

      • Tinman_au
        Posted 12/02/2013 at 11:48 am | Permalink |

        Think it through David, should you be liable just because you know someone that was breaking a law, even though you didn’t know they were breaking it?

        • David Brooks
          Posted 12/02/2013 at 7:48 pm | Permalink |

          This matter is a little deeper than so far stated.
          Yes, NPSF3000, Tinman_au: if my neighbour breaks the law there is no reason to believe that I, or any third party, knew about it; unless evidence exists to the contrary. This has not stopped magistrates from finding people guilty of an offence to which they have been an unknowing party to. But at the local and district court level we are dealing with individuals, who, in many cases, rely on the public advocate if one is available and are simple for authorities to push around.
          If you know someone is breaking the law you are obliged to inform the authorities. Failure to do so is itself a criminal offence. You may not know the other person was breaking the law, try telling that to the magistrate. Your association with the third party is why you end up in court. Guilt by association is well enshrined in our laws.
          The case in hand, Google versus ACCC is somewhat different because it involves a “company” ie Google. You cannot send a company to jail. You cannot stop them trading. You cannot stop investors investing in them. At best they can be fined. And the fines usually amount to no more than pocket money for the “company”. All these, and many more matters re companies, must be kept in mind when they are challenged on some legal matter. If the same rules of evidence applied to companies as those that apply to individuals then Google would now be in jail.
          And that was the point of my post on this matter.

      • Dean
        Posted 13/02/2013 at 10:02 am | Permalink |

        If there is a bulletin board inside my apartment building, is the body corporate liable if someone posts a misleading poster?

    3. Karl
      Posted 11/02/2013 at 5:35 pm | Permalink |

      “This article is by Stephen King”
      The link on the name goes to the twitter of @charispalmer

    Get our 'Best of the Week' newsletter on Fridays

    Just the most important stories, one email a week.

    Email address:

  • Most Popular Content

  • Six smart secrets for nurturing customer relationships
    [ad] Today, we are experiencing a world where behind every app, every device, and every connection, is a customer. Your customers will demand you to be where they and managing customer relationship is the key to your business’s growth. The question is where do you start? Click here to download six free whitepapers to help you connect with your customers in a whole new way.
  • Enterprise IT stories

    • NetSuite in whole of business TurboSmart deal turbosmart

      Business-focused software as a service giant NetSuite has unveiled yet another win with a mid-sized Australian company, revealing a deal with automotive performance products manufacturer Turbosmart that has seen the company deploy a comprehensive suite of NetSuite products across its business.

    • WA Health told: Hire a goddamn CIO already doctor

      A state parliamentary committee has told Western Australia’s Department of Health to end four years of acting appointments and hire a permanent CIO, in the wake of news that the lack of such an executive role in the department contributed directly to the fiasco at the state’s new Fiona Stanley Hospital, much of which has revolved around poorly delivered IT systems.

    • Former whole of Qld Govt CIO Grant resigns petergrant

      High-flying IT executive Peter Grant has left his senior position in the Queensland State Government, a year after the state demoted him from the whole of government chief information officer role he had held for the second time.

    • Hills dumped $18m ERP/CRM rollout for Salesforce.com hills

      According to a blog post published by Salesforce.com today, one of Ted Pretty’s first moves upon taking up managing director role at iconic Australian brand Hills in 2012 was to halt an expensive traditional business software project and call Salesforce.com instead.

    • Dropbox opens Sydney office koalabox

      Cloud computing storage player Dropbox has announced it is opening an office in Sydney, as competition in the local enterprise cloud storage market accelerates.

    • Heartbleed, internal outages: CBA’s horror 24 hours commbankatm

      The Commonwealth Bank’s IT division has suffered something of a nightmare 24 hours, with a catastrophic internal IT outage taking down multiple systems and resulting in physical branches being offline, and the bank separately suffering public opprobrium stemming from contradictory statements it made with respect to potential vulnerabilities stemming from the Heartbleed OpenSSL bug.

    • Android in the enterprise: Three Aussie examples from Samsung androidapple

      Forget iOS and Windows. Today we present three decently sized deployments of Android in the Australian market on Samsung’s hardware, which the Korean vendor has dug up from its archives over the past several years for us after a little prompting :)

    • Businesslink cancelled Office 365 rollout cancelled

      Microsoft has been on a bit of a tear recently in Australia with its cloud-based Office 365 platform, signing up major customers such as the Queensland Government, Qantas, V8 Supercars and rental chain Mr Rental. And it’s not hard to see why, with the platform’s hybrid cloud/traditional deployment model giving customers substantial options. However, as iTNews reported last week, it hasn’t been all plain sailing for Redmond in this arena.

    • Qld Govt inks $26.5m deal for Office 365 walker

      The Queensland State Government yesterday announced it had signed a $26.5 million deal with Microsoft which will gain the state access to Microsoft’s Office 365 software and services platform. However, with the deal not covering operating system licences and not being mandatory for departments and agencies, it remains unclear what its impact will be.

    • Hospital IT booking system ‘putting lives at risk’ doctor

      A new IT booking platform at the Austin Hospital and Olivia Newton-John Cancer and Wellness Centre in Melbourne is reportedly placing the welfare of patients with serious conditions at risk.

  • Enterprise IT, News - Apr 17, 2014 16:39 - 0 Comments

    NetSuite in whole of business TurboSmart deal

    More In Enterprise IT

    News, Telecommunications - Apr 17, 2014 11:01 - 147 Comments

    Turnbull lies on NBN to Triple J listeners

    More In Telecommunications

    Featured, Industry, News - Apr 17, 2014 9:28 - 1 Comment

    Campaign Monitor takes US$250m from US VC

    More In Industry

    Digital Rights, News - Apr 17, 2014 12:41 - 15 Comments

    Anti-piracy lobbyist enjoys cozy email chats with AGD Secretary

    More In Digital Rights