a Full bench of an appeal court in Sydney, Australia has overturned a lower court ruling that could have an immediate impact even in South Africa. The court has found that Google is responsible for advertising content distributed and published on the Google network according to this Australian news report.
There are two very important principles involved. The first is the antiquated legislation, even in South Africa, regarding fair trade practise. The second is the responsibility of facilitated advert placement now being placed with the facilitator of such advertising as the facilitator has now become the defacto publisher in terms of Australian law.
In the court case Google heavily argued that they are not the publisher and Google won and then lost on appeal.
But are the honorable judges correct to uphold the restrictive and ancient legislation related to ‘fair trade practise’ and the display of competitor advertising?
Yes and No.
The case brought to court by the Australian Competition and Consumer Commission related to competitor adverts being displayed when someone searches for a specific travel agency displaying the name of the competitor and not the advertiser, this part of the judgement is correct, it is evil to place an advert and pose as your competition. But the other bit of the judgement relating to competitive advertising when searching for a specific product is wrong as well as the part about Google, a facilitator, now having to monitor, control and check that all advertisers are only advertising products that are in fact the products that they are supposed to be or to supply.
When a newspaper runs editorial for Insurance in an Insurance (or travel) supplement all the companies bid for advertising in the same supplement and even next to each other. The idea is that similar to small Belgian towns called Antwerpen, where so many jewelers and gem dealers operate right next to each other, a viable and sustainable, known market is created for that sector or specific industry.
Now where the fair trade bit also comes in is that when people search for Pepsi the Australians do not want to see adverts for Coca Cola (neither do the South Africans, btw) but on the Internet and by using a search engine people are not expecting to see 5 million results only for Pepsi. (There is no dispute that should Pepsi advertise as Coke, with a click through to Pespi website, that that would be unfair trade practise and actually even criminal fraud.)
But in relation to search engine advert publication, people are using a SEARCH ENGINE, they want to search all relevant content to Pepsi, competitors, distribution, opposing products, the whole enchilada. Not just 5 million pages only approved by the Pepsi company.
The Aussies need to put another sheep on the barbie, but I should probably not joke about this as I suspect that South African judges are probably also not that open and understanding of the Information age either and some are probably still stuck in the Industrial age.
Australians are just a little bit behind in their social and Internet understanding, I mean a SEARCH ENGINE is not a newspaper or a blog and there is absolutely no reason why Google as an advertising facilitator would have to also be responsible for the adverts that people are publishing themselves. Hmm, I wonder about the Harvey World Travel Agency that started this silly mess in the first place. Here in South Africa I receive SPAM from a business called Harvey World Travel, I wonder if it is the same crowd?
Either way, this ruling could impact us here in South Africa as well as Google has to adjust their business and employ content editors, review advertising and perform many expensive things which will definitely increase the cost of doing business on the Internet.
I’ll bet the Australian judges did not reflect on what impact their verdict would have on South Africa, they probably thought they are only affecting Australia. It is amazing how ignorant some very educated people still are about the Internet.
