19 Apr 2012

Google ads found misleading

Submitted by Troy Rollo

On 3 April 2012, the Full Court of the Federal Court handed down its decision in ACCC v Google Inc [2012] FCAFC 49, finding that advertisements on Google were misleading when an advertiser bought a competitor's trade mark, and Google's advertising engine inserted that trade mark for the link in the ad. The Court also found that because Google provided the feature that enabled this, Google had itself engaged in misleading conduct.

This case strikes me as a phenomenal waste of time.

The central issue was that although the advertiser picked the keywords that would trigger the ads, it was Google's code that transcribed those keywords into the link in the ad.

It is true that Google's conduct in providing this facility was ill-advised. The user knows what keywords they typed - why did Google need to put it in the link to the advertiser's web site, wasting precious space that could be used to inform the reader? It also seems that somebody at Google was encouraging advertisers to use this feature to slip the competitor's keyword in the link, which was just asking for trouble.

On the other hand, surely the vast majority of users of Google are smart enough to have picked up on what was going on, so that if they were misled at all (as opposed to just let to wonder if there might be a connection), it was only very brief and without any real consequences. Aside from the fact that the body of the ad itself usually showed who it was for, there were so many ads popping up with clearly irrelevant keywords in the links that my expectation that the links to ads would contain useful information was rapidly dispelled. My own reaction to these sorts of ads was to think the advertiser (who ultimately made the choice to advertise in this way) came off as sleazy. I was less likely to click a link in an ad that was doing this. Why was the ACCC prepared to sink resources into this? There are much worse examples of misleading, even outright fraudulent, conduct out there, that ACCC seems happy to ignore even when it is brought to their attention.