Google's algorithms become its noose

The decision by the full Federal Court yesterday in Sydney that Google's AdWords advertising service had misled consumers was based on the fact that Google used its algorithms to serve the advertisements, according to Ben Hamilton from Hall & Willcox lawyers.

The decision by the full Federal Court yesterday in Sydney that Google's AdWords advertising service had misled consumers was based on the fact that Google used its algorithms to serve the advertisements, according to Ben Hamilton from Hall & Willcox lawyers.

The case centred around sponsored links in Google search results through its AdWords program by online trading company Trading Post and STA Travel.

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 website, which had no affiliation with the real business, Google and Trading Post were engaged in deceptive conduct.

The case was originally heard last year, with Justice John Nicholas finding that Google wasn't engaged in deceptive conduct because it had merely been a conduit between the advertiser and the consumer.

However, now the full Federal Court has overturned that decision.

The court put Google's technology and the way it interacted with the user at the heart of the decision, Hamilton said. Since Google relied upon its algorithms to surface the ads to consumers, it was liable.

In a statement about the case yesterday, the ACCC pointed to the court saying:

"Google created the message which it presents. Google's search engine calls up and displays the response to the user's query. It is Google's technology which creates that which is displayed. Google did not merely repeat or pass on a statement by the advertiser: what is displayed in response to the user's search query is not the equivalent of Google saying here is a statement by an advertiser, which is passed on for what it is worth."

The consumer asks Google about a search term and Google responds with the advertiser's content.

"Although the keywords 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," the court said.

Hamilton said that this technology focus had been the main reason why the full court ruled against Google while Justice John Nicholas had ruled in favour of the search giant.

The ACCC has said that the decision will have repercussions for other search engines, for example, Microsoft's Bing, which will be accountable for misleading search results. However, Hamilton believes that it could have even wider repercussions, affecting any company that uses technology to surface content to users.

"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?"

The more a company contributes to the surfacing of that content, the more liable they would be, he said.

The Google case had a good chance of going to the High Court, he said, to test the role of technology in consumer laws. Google has 28 days to lodge an appeal.

Technology has played a large part in the legal sphere in recent years, with an Australian Federation Against Copyright Theft versus iiNet case testing whether internet service providers (ISPs) are liable when their customers infringe on copyright using the ISPs' services, and an AFL and NRL versus Optus case testing whether Optus could provide a mobile streaming service at almost real time using a special provision in the Copyright Act.

Although iiNet argued in its case that it was just a conduit, it isn't the same as the Google and ACCC case, according to Hamilton, because it dealt with the Copyright Act and not with deceiving and misleading consumers. For the latter "you don't necessarily need to intend to mislead", he said, whereas AFACT had to show that iiNet had authorised its users to infringe copyright.