Google seeks High Court appeal

Google is seeking leave to appeal the full Federal Court ruling that the search giant had misled users through search results served from its AdWords advertising program.

Google is seeking leave to appeal the full Federal Court ruling that the search giant had misled users through search results served from its AdWords advertising program.

The case centred around sponsored links for online trading company Trading Post and travel booking firm STA Travel that appeared in Google search results. The Australian Competition and Consumer Commission (ACCC) alleged that because the headline of an advertisement link in Google search results often referred to the business name that a person was searching for alone, and then redirected to the Trading Post or STA websites, which had no affiliation with the business being searched for, Google and Trading Post were engaged in deceptive conduct.

Google won the first round of the court case in early 2011, with Justice John Nicholas stating that Google "merely communicated what Trading Post represented, without adopting or endorsing any of it".

However, earlier this month, the full bench of the Federal Court overruled that judgment, stating that sponsored links with the headline of "Harvey World Travel" or "Harvey World" that redirected to the STA Travel website were in breach of section 52 of the Trade Practices Act. Similarly, ads headlined with "" that redirected to car-trading website CarSales, as well as ads headlined "Alpha Dog Training" that linked to The Dog Trainer and ads headlined "Just 4x4s Magazine" that redirected to Trading Post were also in breach of the Trade Practices Act.

"What appears on Google's web page is Google's response to the user's query," the judgment stated. "That it happens to headline a keyword chosen by the advertiser does not make it any less Google's response.

"It is an error to conclude that Google has not engaged in the conduct of publishing the sponsored links because it has not adopted or endorsed the message conveyed by its response to the user's query."

Google was not satisfied with this result, and, according to the Commonwealth Courts Portal, has lodged for special leave to appeal the case to the High Court of Australia.

The ACCC said that Google is within its rights to seek leave to appeal to the High Court. "From the very start of this matter, the commission has held the view that this case is important in clarifying the advertising practices of search engine providers in the internet age," it said in a statement.

Seeking leave to appeal the case to the highest court in the country does not automatically guarantee that the High Court will hear Google's appeal. Google must first must convince several justices of the High Court at a special hearing of why the court should take the time to look at the case, and then the High Court will decide whether to hear the case.

At the time of the judgment in April, Hall & Willcox lead partner in intellectual property and technology Ben Hamilton said that the ruling could have wider implications for many other technology companies.

"If you're the 'conduit' of information, and the more sophisticated the technology is, depending on how you as a conduit interact or deal with the web users, you may be considered to have published the content," he said.

"The issue is that if content originates from someone else, but you publish it, when can the publisher be considered to be liable?"

Google had not responded to requests for comment at the time of writing.

Updated at 2.05pm, 26 April 2012: added comment from the ACCC.