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At the beginning of this year the High Court handed down its decision in the case of Google Inc v The Australian Competition and Consumer Commission (2013) HCA 1. The ACCC has brought proceedings against Google alleging that it had engaged in misleading and deceptive conduct under the former Section 52 of the Trade Practices Act (now S18 of the Australian Consumer Law). Under the Google search engine various companies had used sponsored links which incorporated competitor’s names and brands thus leading consumers to click on the link believing that they were accessing a competitors site rather than the sponsored company’s web address.

The Court held that simply by providing a conduit or means for the company to advertise their business did not mean that Google was adopting or endorsing the conduct and behaviour of these companies and there had to be a further step involved for Google to be guilty of such conduct.

The case is a timely reminder of what a business needs to avoid as misleading and deceptive conduct as defined under the Act.

The PBL key 5 tips to avoid this conduct are:

1. If you are going to allow a third party to advertise on your website or other medium do not under any circumstances adopt or endorse the statements being made.
2. Misleading and deceptive conduct is given a broad meaning and does not only apply to your contractual arrangements but is much wider in application.
3. Such conduct can be by omission as much as by act. Accordingly silence can give rise to such claims.
4. The prohibition on such conduct applies to all conduct not just to conduct affecting consumers. Further a ‘person’ can be guilty of such conduct not just companies and therefore potentially key persons in the business such as general managers and employees can be sued.
5. There are significant remedies available for plaintiffs seeking redress for this conduct including injunctive relief and damages for actual and consequential loss.

If in any doubt about statements you are making in your website or in your marketing and promotional material consult a lawyer such as the team at PBL who can be contacted on 4305 3500

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