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".

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.




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