Judgments next week in the High Court of Australia

Next week, on Wednesday 27 February 2013 the High Court of Australia will deliver two judgments in cases that consider the scope of the implied freedom of communication.

The first is Attorney-General for the State of South Australia v Corporation of the City of Adelaide which raises the validity of a local government by-law prohibiting preaching, canvassing or haranguing or the distribution of leaflets in Rundle Mall, and in particular whether the by-law contravenes any constitutionally-implied freedom of communication.

The second is Monis v The Queen in which the NSW Court of Criminal Appeal held that the offence of using a postal service to menace, harass or cause offence (section 471.12 of the Commonwealth’s Criminal Code), does not infringe upon the implied constitutional freedom of political communication. The Court held that the while the law effectively burdens the freedom, it does so in a way that is consistent with the maintenance of the system of government prescribed by the Constitution.

Grants of Special Leave to Appeal in the High Court of Australia

On Friday, 15 February 2013 the High Court granted special leave to appeal in two cases, and allowed the appeal instanter in a third.

Agius v The Queen is an appeal against a decision of the NSW Court of Criminal Appeal which raises the question of whether a charge properly lies in respect of a conspiracy to defraud where the agreement underlying the alleged conspiracy was formed prior to the commencement of the offence provision, but the agreement was given effect to after that commencement.

Lee v NSW Crime Commission is an appeal from the NSW Court of Appeal in which the Court made orders for the compulsory examination of the appellant under the Criminal Assets Recovery Act 1990 (NSW) notwithstanding that there were pending criminal charges against the appellant to which the answers given during the examination might be relevant.

In a third case, Dunrobin v The Queen, an appeal from the Court of Appeal in Queensland, the High Court granted special leave to appeal, treated the appeal as having been instituted and heard instanter, and allowed the appeal.  Following a concession by the Crown that the Court of Appeal had erred, the High Court entered a verdict of acquittal in relation to one count and remitted the remainder of the counts to the Court of Appeal for re-determination.

Next week in the High Court of Australia

There are three cases listed for hearing in the High Court of Australia next week.

Commencing on Tuesday, 12 February 2013 is an appeal from the Full Court of the Federal Court in Leo Akiba v Commonwealth.  The proceedings arise out of a native title determination application filed on behalf of the Torres Strait Regional Seas Claim Group.  The application was opposed by the Commonwealth, the State of Queensland, a large group of people and companies collectively described as “The Commercial Fishing Parties” and a small number of parties from Papua New Guinea.  The application sought a determination of native title rights and interests in a large part of the sea area of the Torres Strait.  The occupation of the region by the Seas Claim Group and their ancestors was of an essentially maritime character.  The sea is an integral presence in the lives and livelihood of the Islander communities that comprise the Seas Claim Group. At issue is whether or not there is a single Torres Strait Island society for the purposes of the Native Title Act 1993, whether rights held under traditional laws and customs on the basis of a ‘reciprocal relationship’ with a holder of ‘occupation based rights’ are native title rights or interests for the purposes of the Act, and whether or not the laws of The Commonwealth and the State of Queensland governing fishing rights had extinguished such native title as the plaintiff’s might otherwise have held.

Also appearing in the High Court’s Business List for next week is another Native Title case, Karpany v Dietman.  This case deals with whether or not the native title rights and interests of the Narrunga People in South Australia to fish for Greenlip Abalone were extinguished by operation of the Fisheries Act 1971 (SA).

The third case listed for hearing next week is Yates v The Queen, an application for special leave to be heard as if on an appeal, in which the appellant challenges the imposition of an indeterminate prison sentence under section 662 of the Western Australia Criminal Code following his conviction in 1987 of deprivation of liberty and aggravated sexual assault on a 13 year old girl when he was aged 25.  This “deviant behaviour” is said to be a result of various factors unlikely ever to change, including including brain damage, effectively rendering his sentence a lifetime of imprisonment.  

Google wins AdWords appeal in the High Court

This morning the High Court unanimously upheld the appeal in Google Inc v Australian Competition and Consumer Commission, and in doing so held that in providing its AdWords system for advertisers, Google did not engage in misleading and deceptive where that system produced misleading sponsored links.

The Google search engine produces two types of results: “organic” search results and “sponsored links”. Organic search results are information displayed free of charge.  These are matching web pages ranked in order of relevance determined by a complex algorithm developed by Google. Sponsored links are advertisements that include a headline incorporating a link to a website address displayed beneath the headline. When a user enters a search term, Google’s Adwords program conducts an internal “auction” that determines which sponsored links to show, in which order to show them, and how much Google charges its advertisers. The advertiser pays a fee to Google if its link is clicked by a user. Most of Google’s revenue is derived through its advertising business.

The Adwords program is a self-serve system for advertisers, accessible online, that enables advertisers to create their own advertisements and to bid to display them on the results page of a Google search.  The results generated included a headline, additional text chosen by the advertiser, and the web address or URL chosen by the advertiser.  The headline could be a “fixed headline” nominated by the advertiser, or the advertiser could choose to use a “dynamic headline” which allowed the headline to replicate the search terms. The headline was hyperlinked to the URL chosen by the advertiser.  An AdWords customer may elect to trigger advertisements (or participate in an auction that will determine which advertising text will be displayed as a sponsored link) by choosing three different types of keywords. These are ‘exact match’, ‘phrase match’ or ‘broad match’. Hence a search of a keyword or phrase may trigger a number of similar, but commercially unrelated results.  

An example of this process that was in evidence in the proceedings included the advertisements generated by a search for “Harvey World Travel”.  This produced a sponsored link for STA Travel.  The advertiser (in this case STA Travel) had chosen a dynamic headline, so that the search result was prominently headlined as “Harvey World Travel” even though the link was not for Harvey World Travel but for STA Travel, and was hyperlinked to the STA Travel website.

In general terms, at issue was whether the generation of sponsored links to companies commercially-unrelated to the company whose name was entered as the search term amounted to “misleading and deceptive conduct”, and if so whether it was conduct engaged in by Google Inc.

The High Court unanimously allowed Google’s appeal, although their Honours expressed different reasons for doing so.  The plurality of French CJ, Crennan and Kiefel JJ held that Google had no control over a user’s choice of search terms or an advertiser's choice of keywords, and that as a consequence Google did not create, in any authorial sense, the sponsored links that it published or display.  Google was no different to any other intermediary who published, displayed or broadcast the advertisements of others. Independently of that, the trial judge had found that ordinary and reasonable users of the Google search engine would have understood that the sponsored links were created by advertisers, and such users would also have understood that representations made by the sponsored links were those of the advertisers, and were not adopted or endorsed by Google.  These findings themselves were sufficient basis for upholding the appeal.  Hayne J determined the appeal on the narrow ground that those findings by the trial judge necessarily dispensed with the case as pleaded by the ACCC.  Heydon J in separate reasons arrived at similar conclusions to the plurality. His Honour noted that if Google's provision of its technological facilities to display the advertisements caused it to be the maker of the advertisements, then there would be an exceptionally wide form of absolute liability for those who publish information in the media, or there would be a distinction between advertising in online media and advertising in traditional media. There was no basis in the legislation or in the authorities for accepting either conclusion.