Identifying the creators of online content in a converged digital environment

The increasing sophistication of peer-to-peer file sharing technologies, search engine algorithms and social networking systems have changed the dynamics of online content creation. As technology has altered the manner in which online content is created and expanded the means of transmission, the issue of how to properly identify the creator of an online communication has become more subtle. This issue took centre stage in Google Inc v Australian Competition and Consumer Commission because the Australian Competition and Consumer Commission (‘ACCC’) sought to establish that Google had directly contravened s 52(1) of the Trade Practices Act 1974 (Cth) (now s 18 of the Australian Consumer Law which forms sch 2 of the Competition and Consumer Act 2010 (Cth)) rather than contend that Google had merely aided, abetted, counseled or procured contraventions by its advertisers. The words ‘engage in conduct’ in s 52 required the ACCC to establish that Google was itself the creator or originator of the representation. The purpose of the present article is to consider in what circumstances a party, whose primary role is to facilitate the communication of content on the internet, such as a search engine provider, should be held responsible for misleading representations made in content supplied by a third party.