The High Court has unanimously held that Google was not liable for misleading or deceptive advertisements published using its Adwords service.[1]

In their joint judgment, French CJ, Crennan and Kiefel JJ held that "Google has no control over a user's choice of search terms or an advertiser's choice of keywords" (para 67). This is reminiscent of the Court's decision in Roadshow Films Pty Ltd & Ors v iiNet Limited in which it was held that iiNet was not liable for the copyright infringements of its customers, as it had no direct means of controlling their behaviour.

In a separate judgment, Justice Heydon, who is shortly to retire from the bench, was clearly concerned with the broader policy implications of the case. He held that it was wrong as a matter of law that a trader such as Google who does anything more than "repeat or pass on" material will necessarily be responsible for misleading or deceptive conduct (para 148). He also found as a matter of fact that the advertisements were predetermined by the advertisers and not by Google (para 152).

Justice Heydon's decision is very much predicated on the facts before him. Justice Hayne emphasises this point in his judgment, stating that "[t]hese reasons do not depend upon the application of any general rule about the liability of publishers for publishing misleading or deceptive advertisements made and paid for by another" (para 83).

So while the ACCC says that it initiated the litigation in order to clarify the law relating to advertising practices in the internet age, one is left to wonder whether any broader principles can be drawn from the decision. [2] Perhaps what can be said is that policy makers and industry itself need to look at other mechanisms for managing the liability of online service providers for user-generated content.

[1] https://jade.barnet.com.au/Jade.html#article=289620

[2] ACCC Press Release http://www.accc.gov.au/content/index.phtml/itemId/1100729/fromItemId/142