Google, Unlockd will head to trial in Australia first
Competition & Consumer Protection June 8, 2018 10:15 pm By Christine Caulfield

Australia will be the battleground for the first trial in an abuse-of-dominance case against Google by digital advertising startup Unlockd, and expert competition judge John Middleton will be eagerly presiding.

Unlockd’s action, the first alleging misuse of market power since recent reforms to Australia’s competition law, has been scheduled for September 3 in the Federal Court in Melbourne, two weeks before the companies will face off in the UK.

The Lachlan Murdoch-backed company is accusing Google of anticompetitive behaviour after it threatened to block access to its app marketplace.

Unlockd won a temporary injunction last week banning Google from making good on its threat. That injunction was set to be the subject of a hearing in late June, but Google’s barrister Michael Borsky, QC, told Judge Middleton on Friday the company was not contesting an extension until the trial.

That means Unlockd’s Australian app — Unlock Rewards — will remain available on Google Play and Google AdMob until the case is heard.

Borsky said Google also did not oppose the making of an order for mediation in case, but said the company saw “no utility” in it.

Noting the precedential nature of the case, Judge Middleton joked to the parties on Friday that he was “more than happy to go to trial”.

The judge is the current president of the Australian Competition Tribunal, and has presided over several significant competition cases, including the ACCC’s action against Telstra in 2010, which alleged the telco denied competitors access to its infrastructure.

Unlockd’s case alleges misleading and deceptive conduct under the Australian Consumer Law and accuses Google of misusing its market power in violation of section 46 of the Competition and Consumer Act.

Google says Unlockd’s apps violate its terms and conditions and that the company was given the opportunity to fix the issues.

“Our publicly available AdMob and Google Play policies clearly set out how our products may be used, and are designed to protect the interests of advertisers, publishers and phone users. We explained our concerns to Unlockd, outlined how they could fix the problems or use alternatives, and gave them time to make changes. And despite having agreed at the outset to comply with our product policies, apps using their technology remain in infringement today,” a Google spokesperson said.

Unlockd’ apps provide targeted advertising to users when their phones are unlocked in exchange for points that can be redeemed on things like mobile credit and data, entertainment or loyalty points.

Google, it argues, is trying to shut down a potential competitor that could threaten its advertising revenue.

Unlockd’s barrister is Michael O’Bryan, QC. The company is represented by Minter Ellison. Google’s barrister is Michael Borsky, QC, who is instructed by Ashurst.

The case is Unlockd Limited & Ors v Google Asia Pacific & Anor.

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Christine Caulfield

Christine Caulfield has been a journalist for 18 years. She was most recently the Co-Managing Editor at US legal news publication Law360. Prior to that she worked as the County Court reporter for The Herald Sun. She is Co-Founder and Editor of Lawyerly.