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What’s in a click?
Search engine giant Google is at the centre of allegations from the ACCC of misleading and deceptive conduct in relation to Google Sponsored Links. Next month the Federal Court will hear these allegations against Trading Post Australia Pty Ltd, Google Ireland Limited and Google Australia Pty Ltd of breaches of sections 52 and 53(d) of the Trade Practices Act.
The alleged breach is based on the appearance of business names Kloster Ford and Charlestown Toyota in the title of Google Sponsored Links that lead the user to the Trading Post website. Both Kloster Ford and Charlestown Toyota are car dealerships in Newcastle who compete against the Trading Post in the sale of vehicles.
The ACCC has indicated that this type of misleading behaviour is not exclusive to Trading Post. STA Travel, eBay, CarsGuide.com.au, CareerOne.com.au and Microsoft’s Xbox have also been implicated as displaying competitors’ names in sponsored links which direct the user to their own website.
Additionally, the ACCC alleges that by failing to adequately distinguish sponsored links from organic (naturally appearing) search results, Google has engaged and continues to engage in misleading and deceptive conduct.
Doctoring competition
Graeme Samuel has called upon the Australian Medical Association to help change the culture that the medical profession should be exempt from the Trade Practices Act. This follows the Federal Court imposing $110,000 in fines upon two leading Adelaide cardiothoracic surgeons for preventing competition.
John Knight and Iain Ross, two of Australia’s leading heart surgeons, admitted to their anti-competitive conduct. Mr Knight and Mr Ross agreed to hinder or prevent Mr Jurisevic, a fully qualified cardiothoracic surgeon, from entering or supplying his services in the market until he had undertaken further surgical training. They also entered into a ‘no-compete’ arrangement with Mr Edwards, another heart surgeon. This arrangement effectively excluded Mr Edwards from accepting private patients at the hospitals at which Mr Knight and Mr Ross practiced in exchange for them not accepting private patients at Mr Edwards’ hospital.
Justice Mansfield found that although they acted in good faith, and were unaware of their breach of competition law, they effectively operated a closed shop inhibiting the entry of other surgeons into the heart-surgery market in Adelaide. Mr Knight and Mr Ross were fined $55,000 each and ordered to pay $5,000 each for the ACCC’s costs.
Criminal proceedings against cancer therapist
The ACCC has instituted criminal proceedings in the Federal Court against NuEra Wellness Centre Pty Ltd and two individuals for allegedly refusing to provide documents and information to the ACCC. This is the second recent criminal prosecution by the ACCC for a failure to comply with a section 155 notice.
Under section 155 of the TPA, the ACCC has broad investigatory powers to obtain information, documents and evidence about possible contraventions. The ACCC requested documents from the NuEra group of companies and individuals connected with these companies to provide evidence for misleading representations and unconscionable conduct in relation to their claims to cure cancer. The NuEra Health Care clinic charged suffering cancer patients between $25,000 and $35,000 for procedures and theories that were said to cure cancer.
Authorisation for the Phonographic Performance Company of Australia
The ACCC has proposed conditions in a draft decision to re-authorise the Phonographic Performance Company of Australia Limited’s collective licensing arrangements. PPCA is a copyrighting collecting society which represents the interests of record companies and Australian recording artists. The four major record companies in Australia Sony BMG, EMI, Universal and Warner are licensors under PPCA’s collective licensing arrangements for the public performance or broadcast of sound recordings and music videos.
The re-authorisation for the next five years was conditional upon:
- an alternative dispute resolution procedure being included in PPCA’s Complaints Handling and Dispute Resolution Policy
- each record company independently developing guidelines by which it would consider entering into direct licences, and
- a written notice provided to licensees setting out proposed fee increases or other material changes to blanket licences, and the maintenance of a list of those sound recordings in the PPCA repertoire, which are protected under Australian copyright law and covered by the PPCA blanket licence.
In renewing the authorisation the ACCC considered that there would be substantial public benefits through administrative, monitoring and negotiation cost savings.
Prescribed cigarette labelling lost in cyberspace
The Federal Court in Melbourne has made orders and declarations by consent against an online cigarette seller for failing to comply with consumer product information standards for tobacco products.
The ACCC took legal action after the Department of Health and Ageing raised concerns that packaged cigarettes were being sold through the website www.cheapcigarettes.com.au without prescribed labelling.
The products did not comply with the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 that require retail tobacco products manufactured in, or imported to, Australia to be labelled with a prescribed warning, information and explanatory messages and graphic images. The Court granted an injunction restraining the website owner from supplying or aiding, abetting or being knowingly concerned in the supply of retail packages of tobacco without the prescribed labelling.
The Federal Court also declared that the website owner had engaged in misleading and deceptive conduct and had made a false and misleading representation by stating, on the website, that there were no refunds for the tobacco products sold. Customers are actually entitled by legislation to a refund under certain circumstances.