19 February 2013

Tweeting from court

The Sydney Morning Herald reported today that lawyers and recognized journalists will continue to be allowed to transmit court proceedings under new regulations.

NSW journalists allowed to tweet in court

06 February 2013

Google Inc v Australian Competition and Consumer Commission

The decision in Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 (6 February 2013) was handed down today by the High Court of Australia.

This is the third and final round in the legal fight between Google and the Australian Competition and Consumer Commission over "sponsored links", which were later to become known as "advertisements". The Commission claimed that the sponsored links (that is, paid advertisements which are displayed based on keywords used in a search term) were misleading and deceptive within the meaning of S.52 of the Trade Practices Act 1974.

At first instance the Commission failed, and upon appeal to the Full Court of the Federal Court it was successful. Google then appealed to the High Court of Australia, which found in favour of Google.

Section 52 of the Trade Practices Act 1974 is perhaps the most famous part of that legislation, and is now s.18 of the Australian Consumer Law. It requires that a person must not engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. It does not require intentional conduct — a person can contravene the section without intending to do so.

The Commission had claimed that Google's AdWords program, which displayed sponsored links in the search results, had deceived or was likely to mislead or deceive users of Google's search. The problem was that if you searched for travel agent A, the search results would include a sponsored result for travel agent B. This was because travel agent B had used the name of travel agent A in its keywords for its AdWords campaign. So, if you search for Harvey World Travel you would also see a sponsored result for its competitor, STA Travel.

The commission said this was misleading or deceptive because it implied that there was a commercial association between the two travel agents where one did not exist. Car advertisements and dog training were also used as examples of this conduct.

Each of the decisions is worth reading (by lawyers) for useful summaries of the relevant law.

The first instance decision

His Honour Justice Nicholas of the Federal Court found that the advertisements contained representations which were misleading or deceptive or likely to mislead or deceive. Ordinary users of the search engine would have understood that these sponsored links were advertisements as opposed to ordinary search results, but he found that the relevant class of consumers could have been deceived into thinking there was an association between the advertiser and the competitor search term that the user actually entered.

However, he found that Google had not made the misrepresentations — it was a "conduit" which passed on the advertisements of others without endorsement or approval. Therefore Google was not liable.

The Full Court of the Federal Court

The Commission appealed to the Full Court. The Full Court found that Google was liable.

It found that Google had made the misrepresentations, as it had applied its own labour in accepting the users search terms and returning the result set. So, while it was an automatic process, Google had engaged in relevant conduct. "The enquiry is made of Google and it is Google's response which is misleading."

The Full Court also rejected the claim by Google that it had a defence under S.85 (3) which provides that a person in the business of publishing advertisements will not be liable if it did not know and had no reason to suspect that the advertisements would be a contravention of the Act.

The High Court of Australia

The High Court looked closely at the way Google personnel assisted advisers in selecting keywords. If you use AdWords you will be contacted by a Google representative who will try to help you choose appropriate keywords that may work best for you. The Court hinted that if Google had actually chosen the keywords it may have been liable –

"(the evidence) never rose so high as to prove that Google personnel, as distinct from the advertisers, had chosen the relevant keywords, or otherwise created, endorsed or adopted the sponsored links."

The Court also noted that Google has a system to stop certain keywords when Google is on notice of possible misrepresentations, but ascertaining this in every case would be very difficult without any notification.

The Court therefore "considered… that Google did not itself engage in misleading or deceptive conduct, or endorse or adopt the representations which are displayed on behalf of advertisers."

The Court did not need to make a finding in relation to the S.85 (3) defence, but it took the opportunity to clarify the scope of the defence. In particular it noted that a publisher who actually has endorsed or adopted a representation of an advertiser,  but without appreciating the capacity of the representation to mislead or deceive, may still be able to use the defence.

Justice Hayne and Justice Hayden delivered separate judgements agreeing with the joint judgement of Justices French, Crennan and Kiefel.

Justice Hayne found that Google should succeed in the appeal on the very simple basis that any reasonable user would have "understood that these sponsored links were advertisements made and paid for by the advertisers and that the representations made in them were not endorsed or adopted by Google." By taking this approach he was agreeing with the first instance decision of Nicolas J. There was simply no conduct by Google.

Justice Hayden considered that the Full Court had made an error of law and an error of fact. The law provides that Google will not necessarily have contravened S.52 if  it does anything more than "repeat or pass on" material. It was already clear that merely repeating or passing on material was not a contravention, but the Full Court erred in saying that anything more would be a contravention.

The error of fact was that Google did not "create 'the message' sent by means of that technology." Google merely received the advertisements created by advertisers, and the keywords were chosen by the advertisers. His Honour rejected the Commission's submission that "dynamic" insertion of keywords was an active participation in the relevant conduct.

Time has not committed me to fully digest the ramifications of the decision, but it is a useful case in interpreting what is now section 18 of the Australian Consumer Law. Although the High Court tends not to take on  particularly decided cases, it is probably restricted to the particular facts of how Google operates its AdWords program. It is the user that has complete control over the keywords, and Google has a system to prevent abuse of keywords where it is notified. Google did not play a part in creation of the advertising, and therefore there was no "conduct" by Google.

However, this still leaves open claims against the advertisers who use the keywords of their competitors to create an impression of false associations between the advertiser and its competitors. I wouldn't be surprised if we see claims by competitors for damages relying on S.18, provided that they are able to quantify the damage.

05 February 2013

Reflections from a week in Saudi Arabia

I spent the last week of January 2013 in the Kingdom of Saudi Arabia as the guest of the National Guard Health Affairs, which is roughly equivalent to the Ministry of Health. It was the 1st Scientific Conference on Strategic Development & Performance in Health Institutions in Riyadh in the Kingdom, organised by the College of Medicine of the King Saud bin Abdulaziz University and the Gulf Cooperation Council.

Riyadh Mosque entrance
I initially accepted the invitation with mixed feelings, as I felt in particular that the treatment of women was oppressive and unjust. But, since the Kingdom is a difficult place to be permitted to visit as a tourist, and I was keen to gain a better understanding of Islamic culture, I accepted.

Why did I speak at a health conference? I gave a speech that I've given a few times before on risk management in the context of social media.

Health institutions and professionals engage in social media for many reasons, and some of these reasons include  altruistic (disseminating valuable health information), mere advertising, or for information gathering purposes. As an aside, my observation of Australian health institutions on Twitter is that they do this particularly badly.

In a society which has a high proportion of young people (60% under 20 years old) with good internet connectivity there is an opportunity to both speak and listen on health matters.

There were over 1000 registrations for the conference, and what surprised me most was that at least one third of the attendees were women. While many were local, there was a sizeable proportion of immigrant health workers from the Philippines. The Philippines supplies many of the medical technical personnel required in the health system, and they are well regarded.

It is clear that the Kingdom takes their health system seriously, and is keen to improve it. This conference was a full two days on risk management, with the majority of speakers from overseas. The speakers included those from Turkey, Finland, Australia, United Kingdom and the United States of America.

An open society?
While the kingdom does not appear to encourage tourism, it is nevertheless far more "open" than I imagined. A recent BBC documentary (well worth watching) on Prince Saud bin Abdul Mohsen painted a picture that I found fairly accurate. The Royal family is keen to evaluate and embrace new ideas that are of value, without needlessly discarding centuries of history and culture. The former is amply demonstrated by the fact that 90% of the conference speakers were foreign, and it was refreshing to visit a culture that had not discarded cultural icons such as its clothing. When I visited Japan I was disappointed to observe that there was no evidence of traditional dress styles, whereas in Riyadh the traditional dress was the rule rather than the exception.

Another example of this interest in external ideas was an article in the Arabic news on 31 Jan 2013 noting that SABIC was offering scholarships to gifted children to study abroad. This is a culture that is not afraid of new ideas, and has the good sense not to accept all of them. "New" does not equal "good".

In Saudi Arabia the Internet is filtered. I came up against the blocking page several times while I was there, but I was able to access everything I needed. There was no difficulty in using the commercial VPN service that I subscribe to, so I could have had access to all material available to me in Australia.

At the time of writing Twitter has only provided Arabic language services for less than 12 months. Facebook had been available for around three years. The topic of my talk was risk management in the use of social media, so it is clear that the government health system sees value in using social media for both disseminating information and gathering health intelligence.

The take away from this is that the Kingdom is open to absorbing that which is of value, without taking on board the noise and baggage that also comes with the Western world. I can't recall exactly which web sites I was not able to access, but I'm fairly confident they were of no actual value to their society (pornography, useless gossip columns, and the rubbish that passes for lifestyle news). This is a society that has decided it doesn't have time for the detritus of the Internet, while maintaining open access to that which is of value. In the BBC documentary the Prince made it clear that there was no imperative to accept cultural aspects that they frankly found unacceptable. The Saudis are proud of their history and make no apologies for things such as the law permitting them to cut off the hand of the thief. However, for the law to impose such a penalty there are so many legal requirements that the thief would have to be very determined to subject himself to the punishment. The death penalty is enforced (in January 2013 nine nationals were beheaded) just as it is in the United States of America and many other countries.

I saw no evidence of news censorship (although that may be the result of censorship which is well done). For example, the newspapers published information about the current Syrian and Egyptian riots on their front pages, and I read a letter to the editor in the newspaper praising the winding back of the powers of the religious police.

This was a response to an announcement made while I was there  (Powers of Haia Curtailed - Arab News via AFP). However, this is just one step, as women are still, for example, banned from driving.

Women & culture
Shortly before I travelled to Saudi Arabia the King fulfilled his promise to appoint women to his advisory Council, and they are on track to allow women to vote in 2015. While I was there the Minister of Interior Prince Mohammed bin Naif said that the General Directorate of Investigation (the Director of Public Prosecutions to you and me, I suspect) "should open its doors to employ women with the required qualifications". Another event that occurred was that Bena'a Productive  Families Centre and the Saudi Arabian Oil Company signed a partnership deal to develop skills amongst women to own and run small-scale projects in different parts of the Kingdom.

The conclusion I drew was that the King is walking a fine line between progress that can be accepted peacefully, versus a pace that might cause difficulty in society. It remains that women, except in major centres, wear full robes with only a slit for the eyes. Many women will cheerfully tell you that they are very happy to do so and choose to do so, but they are not free to not do so. That freedom is a value that is very important to me, but my values are not Saudi values. Having said that, I would find it difficult to accept or understand such a dress code for immigrants to Australia, and I have a great struggle understanding why separate entrances for females are required for public buildings such as libraries.

Except for one of my drivers I found the Saudis are extremely polite. The attention to detail in the preparation of the conference was extraordinary, as was their generosity and hospitality. The culture has a strong sense of hierarchy, and I found it interesting during one of the risk talks that a comment was made by a senior attendee that there is a culture of blame whern errors occur - they aren't too different from you and me. The sense of hierarchy and formality is very clear in the way people are addressed, titles used and seating arrangements in public activities. There is a sense of "theatre" about some public ceremonies, which it is clear that they enjoy. As in  the world over, younger people tended to be less formal, but know when they need to be.

I did see women acting more freely than I expected, such as one who approached me to discuss my conference speech, and when out shopping. I was in the Dirah souq in a small shop with a male shopkeeper. A fully robed woman entered the store and appeared to have no difficulty in being with two men, and later alone with the shopkeeper after I left.

Although Riyadh has not had political or terrorist trouble for some years, there was a lot of security on  show. The Intercontinental Hotel had automatic road barriers in the ground, in-ground lighting to facilitate undercar searches, road spikes on the exit, and their own baggage x-ray machine. Cars were photographed on entry through the checkpoint. The Ritz-Carlton (an amazing hotel) has the same arrangements. Just around the corner from the Intercontinental was the Ministry of Interior, and the main road had checkpoints manned by soldiers with automatic rifles. Other buildings had razor wire around them, and on the road to the airport there were trucks with turret-mounted machine guns (albeit rather elderly looking). Just like in the Western world, some of this security was more of a charade than reality. My Finnish friend was pulled up by one of the armed soldiers for photographing the architecturally interesting Ministry of Interior, and while he escaped confiscation of his camera, he had to delete the photographs. Nevertheless, photographs of the building are available all over the Internet and even on postcards sold within the Kingdom.

Traffic & transport
Traffic was chaotic compared to Australia, but nothing like Southeast Asia (such as Cambodia or Vietnam). There are two principal differences: motorcycles are virtually non-existent in Riyadh; and Riyadh drivers are far more likely to run you over or collide with your car. All the vehicles appeared to only ever have one occupant, and his sole responsibility was not to drive correctly but the blow the vehicle's horn. Lane markings are largely only a rough guide, and it seems that it is critical to make your lane choice at the very last second possible. Using your indicator is seen as a sign of weakness and a beacon to take your spot before you do. Despite all this they remain fairly good-tempered, even in a traffic jam at 4 AM. My driver was an outstanding example of this:

There is virtually no public transport in Riyadh, and certainly nothing like regular buses or a metro train system. Fuel costs about one Saudi Arabian Riyal (at the time of writing AUD$0.25 or about one seventh of the Australian price) but it's not clear whether cheap fuel is the cause or result of the lack of public buses. A lot of the cars look like they have been stolen from the wreckers yard but occasionally you will see a new Bentley or Rolls-Royce. Taxis are cheap (about AUD$5 for a half-hour ride) but perhaps only 50% of the drivers can speak any level of English. I found out to my personal cost that a lot of them don't necessarily know their city that well either. If you have a good idea of the price then you should agree the price before getting in the cab, but I found that most drivers bargained for what would be eventually about the metered price anyway. The one time I was taken for a ride was when I was very tired and hot and caught a cab from the number one office building in the city – Kingdom Tower. Having said that, I probably paid only AUD$2 more than I should have.

Road laws are a mixture of strict adherence, such as red light and speed cameras, but it is okay to drive something out of a Mad Max movie or pile your labourers in the back of your truck. As well as not seeing any motorcycles, I did not see any bicycles either. A cab driver told me that riding either of these was roughly equivalent to jumping off Kingdom Tower. I thought that heat may have had something to do with it, but I actually found that it could be pleasantly cool (15°) all day in winter.

You can probably forget about using maps. They are largely an expression of intention rather than a useful tool. I found three entirely different addresses for a restaurant I wanted to visit (there was only one restaurant), and Google Maps was likely to be as inaccurate as anything else. The satellite layer or Google Earth was of some value provided you can correlate the map names with the geography.

This experience was one of those in my life where I have been completely turned around from a fairly strongly held position. Prior to the conference I had extremely negative opinions around Saudi Arabian culture and lifestyle, but I actually found a system of government that not only says it desires change, but is actually changing. Absolute monarchies are fairly foreign to Western culture, and they are by their very nature specific to the individual. My very limited exposure suggest that this is a culture with good (and well-intentioned) government which is on the road to rectify some anomalies such as the treatment of women, while carefully evaluating other Western lifestyle choices.

I have no doubt that there are many other facets of their society which would not be acceptable to Western notions of equal human rights.I don't have enough information to comment on this further

There is no desire for a homogenous culture indistinguishable from the West or even other Arabic countries. There is a strong desire to retain their lifestyle and identity while having the good sense to explore and accept those things that are of value or can be learned. It is a society that is on a controlled but well-directed journey.

Back from Saudi Arabia

I spent last week in Saudi Arabia (via Oman), and have published my photographs at https://plus.google.com/photos/107663051060911824195/albums/5841260118689069793?authkey=CJab_ujBgv39tgE

I'm in the midst of writing an essay about my time there, lessons learned and some observations of life and culture in the Kingdom. Keep an eye out for it here soon.