ACCC v Google Asia Pacific Pte Ltd

Federal Court of Australia
[2025] FCA 1554 (2 December 2025)
Justice Moshinsky

Catchwords

COMPETITION LAW – prohibition against making a contract, arrangement or understanding in which a provision has the purpose, or would have or be likely to have the effect, of substantially lessening competition – where the respondent (Google) entered into understandings with each of Telstra and Optus which contained a provision that the parties would continue to be bound by the existing terms of their revenue share agreements – where the existing revenue share agreements included “Platform-wide Provisions” which required that all search access points on any Android mobile device supplied by Telstra or Optus (as the case may be) be configured to utilise the Google general search engine – where Google admitted that its conduct contravened s 45(1)(a) of the Competition and Consumer Act 2010 (Cth) – where the ACCC and Google jointly proposed declarations of contravention and a total pecuniary penalty of $55 million – declarations and orders made as proposed by the parties

Finding

Admitted contravention of s 45(1)(a). Section 45(1)(a) states:

(1) A corporation must not:

(a) make a contract or arrangement, or arrive at an understanding, if a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

Joint proposed declarations and pecuniary penalty of $55 million accepted.

Declarations and orders

THE COURT DECLARES THAT:

1.    By in or around December 2019, the Respondent contravened s 45(1)(a) of the Competition and Consumer Act 2010 (Cth) (CCA) by arriving at an understanding with Telstra Limited (Telstra) which contained a provision which:

(a)    was to the effect that the parties would continue to be bound by the existing terms of the “Google Mobile Revenue Share Agreement” between the Respondent and Telstra, including the Platform-wide Provisions (described below), until they concluded negotiations regarding a further revenue sharing agreement; and

(b)    was likely to have the effect of making it more difficult to obtain the distribution of general search engine services (GSE Services) in Australia during the period from December 2019 until the end of March 2021 and, thereby, was likely to have the effect of hindering competition (within the meaning of s 4G of the CCA) in an Australia-wide “market in Australia” (within the meaning of s 4E of the CCA), in which GSE Services were supplied.

The “Platform-wide Provisions” were provisions of the Google Mobile Revenue Share Agreement which required, as a condition of the Respondent paying Telstra a share of search advertising revenue generated through certain search access points on Android mobile devices supplied in Australia by Telstra, that:

(i)    all search access points on any Android mobile device supplied by Telstra in Australia were configured by Telstra to utilise the Google general search engine (Google Search) ‘out-of-the-box’; and

(ii)    Telstra could not implement, preload or otherwise install on any such device ‘out-of-the-box’, or present, introduce, or suggest to an end user of such a device, any GSE Service that was substantially similar to Google Search.

2.    By in or around December 2019, the Respondent contravened s 45(1)(a) of the CCA by arriving at an understanding with Optus Mobile Pty Limited (Optus) which contained a provision which:

(a)    was to the effect that the parties would continue to be bound by the existing terms of the “Google Mobile Revenue Share Agreement” between the Respondent and Optus, including the Platform-wide Provisions (described below), until they concluded negotiations regarding a further revenue sharing agreement; and

(b)    was likely to have the effect of making it more difficult to obtain the distribution of GSE Services in Australia during the period from December 2019 until the end of March 2021 and, thereby, was likely to have the effect of hindering competition (within the meaning of s 4G of the CCA) in an Australia-wide “market in Australia” (within the meaning of s 4E of the CCA), in which GSE Services were supplied.

The “Platform-wide Provisions” were provisions of the Google Mobile Revenue Share Agreement which required, as a condition of the Respondent paying Optus a share of search advertising revenue generated through certain search access points on Android mobile devices supplied in Australia by Optus, that:

(i)    all search access points on any Android mobile device supplied by Optus in Australia were configured by Optus to utilise the Google Search ‘out-of-the-box’; and

(ii)    Optus could not implement, preload or otherwise install on any such device ‘out-of-the-box’, or present, introduce, or suggest to an end user of such a device, any GSE Service that was substantially similar to Google Search.

THE COURT ORDERS THAT:

3.    Pursuant to s 76(1)(a)(i) of the CCA, the Respondent pay to the Commonwealth of Australia a total pecuniary penalty in the sum of $55,000,000 in respect of the contraventions referred to in paragraphs 1 and 2 of this order, comprising a penalty of $27,500,000 for each of the contraventions described in paragraphs 1 and 2 above, to be paid within 30 days of this order.

4.    The Respondent pay a contribution to the Applicant’s costs in the amount agreed between the parties, pursuant to s 43(1) of the Federal Court of Australia Act 1976 (Cth), within 30 days of this order.