Trading Post Australia Pty Ltd (Trading Post) is a wholly owned subsidiary of Sensis Pty Ltd (Sensis). Trading Post operated, and since May 2007 Sensis operates, the website www.tradingpost.com.au (Trading Post website). The Trading Post website publishes online classified advertisements for the sale and provision of goods and services, including motor vehicles.
Trading Post/Sensis purchase “keywords” from search engine companies, such as Google, so that when a user types in such keywords on search engine websites, such as www.google.com.au, advertisements (referred to by Google as “sponsored links”) are triggered. Two such keywords purchased by Trading Post during 2005 were “Kloster Ford” and “Charlestown Toyota”. Kloster Ford and Charlestown Toyota were registered businesses in NSW each operating car dealerships.
As a result of the purchase of those keywords, sponsored links appeared on Google websites, including www.google.com.au, with headlines containing the keywords. When a user clicked on the headlines of these sponsored links the user was taken to the Trading Post website. However, the Trading Post website contained no information regarding, or advertisements by, either Kloster Ford or Charlestown Toyota.
In July 2007, Federal Court proceedings were brought by the ACCC against Trading Post and Google. In order to settle the proceedings brought against it, Trading Post admits that its conduct was misleading and deceptive in breach of section 52 of the Trade Practices Act 1974 (the Act) and, by representing it had an approval or affiliation which it did not have, that the same conduct also breached section 53(d) of the Act.
Conditional upon the Court also being satisfied of the existence of such breaches, Trading Post has provided a court enforceable undertaking to the ACCC that it will consent to suitable declarations being made by the Court.
Trading Post and Sensis have further provided court enforceable undertakings to the ACCC that it will not permit the publication of search engine advertisements where the title or headline contains a known competitor’s name and the user is directed to the Trading Post website, in circumstances where no information regarding, or advertisements by, that known competitor is contained on the Trading Post website.
Sensis has also provided court enforceable undertakings to the ACCC that it will implement a trade practices corporate compliance program for Sensis employees and other persons involved in its business.