“The decision in Voller does not only apply to media organisations hoping to drive traffic to their stories: it also applies to any businesses, not-for-profit organisations, community groups or individuals with a Facebook page or profile.”
— Ashurst “The end of cheap comments?”
Google restricts FS marketing
Google is implementing a verification program for financial services marketing in Australia, Singapore and Taiwan from 30 August 2022. The rollout follows the successful implementation of the same program in the United Kingdom.
The verification program is aimed at verifying the legitimacy of advertisers in the financial services industry. Google is taking these measures to to combat online fraud and to:
“…prohibit bad actors from deceiving people through tactics such as phishing, using clickbait, or providing misleading information about a product, service or business”.
Somewhat cynically, we speculate that Google is also acting due to recent judicial focus on its liability as the publisher of online content.
In the cases of:
- Voller v Nationwide News Pty Ltd  NSWSC 766, and
- Fairfax Media Publications Pty Ltd v Dylan Voller; Nationwide News Pty Limited v Dylan Voller;
- Australian News Channel Pty Ltd v Dylan Voller  HCA 27
The Voller cases & Publishing
The High Court of Australia held that a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.
In the Voller cases, media outlets were held liable for third-party comments on their Facebook pages.
In the more recent case of Barilaro v Google LLC  FCA 650 (Barilaro), Google was held to be the publisher of defamatory content posted to Youtube by a third-party and ordered to pay $715,000 to John Barilaro. Whether this judgment is enforceable against the US-based media behemoth is yet to be seen.
As with defamation law, consumer protection law recognises a distinction between the person making a misleading representation and an ‘intermediary’ who passes on that representation. The intermediary can become responsible for the content of the communication, but unlike defamation law, the test is whether it would appear to reasonable consumers that the intermediary (Google, in this case) had adopted or endorsed the representation.
In any event, the legal categorisation of “publisher” and the potential liability this attracts may be influencing Google’s enthusiasm for safeguards in financial services advertising.
How will it work?
Financial services advertisers will be required to demonstrate that they are authorised by their relevant financial services regulator and complete Google’s advertiser verification program in order to promote their products and services on Google.
There are two exemptions to the requirement to be authorised by the regulator.
- One exemption exists for businesses which do not promote financial services yet have a compelling reason to target users who seek financial services (such as law firms or eCommerce platforms).
- The other exemption exists for businesses which are exempt from the requirement to hold an AFSL or ACL under relevant legislation.
We note that authorised representatives, agents, affiliates, and marketers will not be eligible for verification independently. Licensees will be required to obtain verification and then initiate verification in each of these cases by submitting a list of domains or websites that will be used to promote their services.
If you do advertise financial services online:
- The verification does not cost the advertiser anything, and
- The verification process can be accessed here: https://www.g2llc.com/financial-services/