When Lawmakers Lose Touch - Google vs ACCC

Once again we see an example of just how out of touch the processes of law and national politics are with the social and technological dyn...

Once again we see an example of just how out of touch the processes of law and national politics are with the social and technological dynamics of the internet today.  The Australian Federal Court upheld an appeal by the ACCC against Google claiming that some advertising served by the technology giant were misleading and deceptive.

The argument I have with this accusation is on the basis of WHO did the misleading and deceiving? and therefore WHO should logically be accountable?

The Issue
Take a look at this admittedly crude example below.  It is a rough mock-up of the way a served google AdWords ad might look to anyone searching Google for the keywords "Harvey World Travel".
CLICK ON THE DEMO 'AD' LINK BELOW AND TAKE NOTE OF WHERE IT TAKES YOU . . .

A national agency offering
travel news, & special offers!

Look how easy it would have been to insert links to their own site using competitors keywords for anyone marketing for STA Travel via the AdWords program.  Being an HTML mockup it is not a perfect example of course, but I used these two companies as it is one of the very same examples the original case (which incidentally went in Googles favour) was based around.

Using the same example, this image below is actually a screenshot from within Google AdWords and shows how easily you could set that particular ad campaign up to mislead someone believing they were clicking on a competitors link.

Click to enlarge | Inside AdWords



Passing the Buck
The ACCC believes that Google should be responsible for the conduct of all users submitting ads on the internet via its adsense platform, and this is exactly where they lose touch.  We are talking millions of users on a GLOBAL market.  What is to stop an offshore company not under Australian jurisdiction  from doing exactly the same. thing?

Ironic that the ACCC should be trying to pass off the responsibility burden to Google when the ACCC is, by their search listing on Google, an "Australian government organisation responsible for ensuring compliance with the Trade Practices Act 1974" (since renamed the Competition and Consumer Act 2010 on 1 Jan 2011)  Should they not by their own values be the ones chasing up the individual Australian companies who are in breach by submitting misleading advertising?

The Flawed Argument
Let me pose some examples to you to highlight the flaw in the Federal Court's ruling and why they and the ACCC are now seen to have an inability to comprehend the scope of the global internet to you.
  • Yahoo and Hotmail the free web based email services, these are long time favorite contact mediums for  low tech "419 Scams", the infamous email scams predominantly originating from Nigeria.  If an email is sent by a scammer to a person who eventually loses money to that scam should the email system that carried that letter be held accountable for delivering that email in the first place?
  • For arguments sake lets simplify this even more and place this in a non-internet context that the ACCC and the Federal Court might be more inclined to understand.  If a misleading letter, anti competitive in nature, which is found to be in breach of  the Competition and Consumer Act 2010  is sent via Australia Post and reported would the ACCC be fair in assuming that Australia Post as the carrier of that message is liable?
  • Craig Danvers wrote the analogy in laymens terms that also seems to fit the situation in this case ". . . the government builds us roads and allows us to each buy our own car, but if we speed on those roads should the government pay our fines? . . . "  
I'm sure there could be plenty of debate about semantics in all of the above examples but my Australian readers will be well aware of the trending inability of our country's many lawmakers and politicians to understand both the technical and the social workings of the internet with ill conceived ideas such as the national internet filter and the gaming classifcation farce.

Small victories for common sense however such as iinet's win against AFACT still bring hope that perhaps all is not lost in an increasingly complex electronic world where the country's decision makers appear to be increasingly out of touch with the fact that they cannot control the internet except by regulations that are far more likely to censor and cripple its vast potential.

To my thinking it is the ACCC that should be taking the responsibility for Australian companies who they believe may be guilty of breaking the rules.*

* Updated information is provided that shows the ACCC  holding Australian companies responsible for these types of actions.  Thankyou to Lou for providing this link to a case article where the ACCC has taken trading post to court for misrepresentation using Adwords

COMMENTS

BLOGGER: 10
  1. ACCC at it again, why don't they start with the long running issues of petrol price inflation by fuel companies that they have repeatedly failed to take action on.

    ReplyDelete
  2. well aren't these companies supposed to be 'watched by' the so called 'watchdogs' gotta love how the ACCC shirks its job!!!

    ReplyDelete
  3. Agreed @MikeyB I was going to add that it was even more disappointing is the ACCC shirking of responsibilty for watching the Australian companies guilty of misrepresentation

    ReplyDelete
  4. so I'm confused. What exactly do we fund the ACCC for when they expect others to do their policing for them?

    ReplyDelete
  5. Anonymous15:17

    but aus post cant examine fhe contents of letters so that argument holds no weight. Likewise email is sent from any.source with out over sight. Ads how ever are shown as part of an explicit agreement between google and advertiser and as such google is complicit if their is blatant false.advertising. How google can really police this is another case altogether.

    ReplyDelete
  6. There are certainly grey areas that can be debated in the examples as I mentioned in the article, as there are indeed many grey areas in the case itself. I don't believe Google can be assumed to be blatantly serving false advertising. The Ad content is totally in the hands of the holder of the AdWords account. That people can 'game' the algorithms that serve this content is undeniable and yes I agree, how Google can possibly police anything of this scale is beyond my scope of understanding and, as it would seem, the understanding of the ACCC or the Federal Court.

    Any ACCC action should target the Australian companies they find who push false and anti-competitive information onto the AdWords platform. That is, after all, their jurisdiction.

    ReplyDelete
  7. I agree with Anonymous above.

    It is a different argument, advertising and the Google system is a completely different ballpark to emails and mail. Of course they could all monitor their content and could (and do) restrict it (when there is extreme cases).

    I think if you look at the same scenarios differently, say someone sending a threat via mail versus someone creating a threatening ad, we would see the same outcome. No one would blame the postal company, post office or postal worker, but people would question Google as to why they allowed such an ad to be published.

    Why didn't you make a comparison between Hotmail's advertising model (showing banner ads within the mail client) and Google's. I think you might be missing the point, websites that operate not-for-profit business models and offer goods freely to the customer are suffering losses in exposure due to businesses capitalising on the organic search for these websites and are redirecting users to their services. If Google can continue to allow advertisers to use non-Trademarked terms that are associated with their compeition, then what is to stop very large companies simply using all their smaller competitors names in ads?

    ReplyDelete
  8. valid points Lou, however in the Global scheme how then would Google effectively police the different laws of every country and their respective anti-competition watchdogs ( presumably some countries exist that do not even have such bodies ) as opposed to Australia's own ACCC who should have a more detailed knowledge of the environment.

    The ACCC's responsibility is to ensure compliance, it should therefore be policing the companies in breach of this act. At the time of writing this article there was no media which suggested that they did that to anyone except Google.

    ReplyDelete
  9. Hi Auki, thanks for your response. To address your points:

    Google is multi-billion dollar company. They hire many contractors and have many employees doing all the things that are necessary to make them competitive and earn those dollars (or whatever currency from the countries that it operates). If Google weighs up the cost benefit of employing people in order to avoid the cost of people breaching laws through the use of their service, then perhaps it would police it. It does prevent using trademark terms without special permission. Either way it is difficult problem, but governments can't just allow a company to be exempt from the law just because it is huge, and can't be bothered managing these problems.

    If what you mean by this question is why are they only taking Google to court over this problem, ACCC took trading post to court for misrepresentation using Adwords... http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2011/1086.html

    Regardless, Google benefits from this. Therefore under law they are responsible and negligent. The point here I figure is to make a point, to deter others from doing the same- because you, me, Craig Thompson, mining magnates and all other law abiding citizens know that breaking the law is wrong.

    ReplyDelete
  10. Thanks Lou for providing the informational link there, I have updated the article with a note to that link in contrast to my last point as it was written. It's good to see the ACCC is actually taking Australian companies to task for misleading advertising in the medium. I agree, a mindset of deterrence is a responsible measure on behalf of the government.

    In this case however I still have reservations about the ACCC's belief that Google Inc is the culprit in a scenario such as this. My personal belief is no, simply because my view is that Google cannot possibly police its entire advertising volume instantaneously, much like Facebook can not effectively police content on its infrastructure instantaneously. If issues had been reported to Google and not been actioned on then yes I would agree to fault on their behalf.

    My personal opinions aside though I would have to concede this point to Australian law if there was indeed a document that provides clear direction to the ACCC about whether Google, within Australian jurisdiction at least, is acting as an Intermediary or a Publisher with its Adwords product.

    ReplyDelete

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Auki Henry Official: When Lawmakers Lose Touch - Google vs ACCC
When Lawmakers Lose Touch - Google vs ACCC
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