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At the core of the issue is the way some of Google's AdWords clients run advertisements with headlines containing the name, product name or domain name of their competitors. The full bench of the Federal Court held that Google, not the individual advertisers, was responsible for what was determined to be misleading or deceptive conduct.
Reports are now circulating (eg, in The Australian) that - as expected by many observers - Google will seek leave to appeal to the High Court. However, a Google spokesperson told the AFR that an appeal was merely under consideration.
The problem for Google is that while the Federal Court judge that heard the original case held that any misrepresentation was made by the advertiser and not by Google, the full bench determined "the enquiry is made of Google and it is Google's response which is misleading".
At the time, ACCC chairman Rod Sims said "This is an important outcome because it makes it clear that Google and other search engine providers which use similar technology to Google will be directly accountable for misleading or deceptive paid search results."
Consequently, there are suggestions that Google will attempt to involve in the case in some way fellow search engine operators Microsoft and Yahoo.
