Crypto Class Action Update - Submissions for Hearing on Leave to Serve - Part 1

I will shortly be having an interlocutory hearing to establish that I have a prima facie case against Facebook & Google that their ban on cryptocurrency advertising breached Australian Competition Law.

Here are my consolidated submissions for that hearing which concisely (25 pages) sets out the case with all the law and evidence referenced.

I wanted to get these submissions immutably written to the blockchain but Hive markdown doesn't support continuous paragraph numbering with headings as well so the paragraph numbering restarts every section.

I've also had to split this 12,000 word post into two as PeakD is giving me an error that its too big.

Here is the first page of the version stamped by the Court.

Applicant Consolidated Submissions for Leave to Serve .jpg

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Andrew Paul Stuart Hamilton v Facebook Inc. & Google LLC NSD899/2020

Consolidated Submissions of Applicant - Leave to Serve

  1. These submissions consolidate, extend and replace the Applicant's
    prior submissions related to its applications for leave to serve the
    Respondents in the USA and for substituted service.

  2. Terms defined in the Amended Originating Application (OA), Amended
    Statement of Claim (SoC), Interlocutory Application (IA) and
    supporting Affidavits are repeated here. A reference to the location
    of the definition of each defined term is included at its first use
    in these submissions.

Background

  1. These proceedings relate to the Respondents' conduct in banning
    cryptocurrency related advertising on their platforms ("Ad Ban")
    commencing in early 2018 and continuing to this date.

  2. Each of the Respondents amended their Standard Contracts [SoC 3]
    with all their advertising customers to include Ad Ban Provisions
    [SoC 4] in the first half of 2018 and have continued to adjust
    these Ad Ban Provisions over the last three and a half years.

  3. The Respondent submits that:

    1. the Ad Ban Provisions are exclusionary cartel provisions under
      Division 1 of Part IV of the Competition and Consumer Act 2010
      ("Act") which the Respondents gave effect to (the "Cartel
      Claim
      "); and

    2. the Ad Ban Provisions are provisions in contracts which the
      Respondents gave effect to; and the Ad Ban is a concerted
      practice; both of which had the effect of substantially
      lessening competition under Division 2 of Part IV of the Act
      (the "s45 Claims").

  4. The Cartel Claim relates to the purpose of the Ad Ban Provisions
    in relation to online advertising services, while the s45 Claims
    relate to the effect of the Ad Ban in markets for
    cryptocurrencies
    .

  5. The s45 Claims will be established as prima facie contraventions
    of the Act on substantially the same evidence required to prove the
    Cartel Claim.

  6. The Applicant has added the s45 Claims for consideration in this
    interlocutory application because it is in the interests of
    efficient administration of justice for all relevant legal claims
    arising from substantially the same factual material to be
    considered together.

Leave to Serve outside Australia

  1. Division 10.4 of the Federal Court Rules 2011 (Cth) ("FCR")
    outlines the requirements for service outside Australia.

  2. FCR r10.43 (4) requires the Applicant to satisfy the Court that:

    1. the Court has jurisdiction in the proceeding;

    2. the proceeding is of a kind mentioned in FCR r10.42; and

    3. the Applicant has a prima facie case for all or any of the
      relief claimed in the proceeding.

Jurisdiction

  1. The Court has jurisdiction in this matter under s86(1) and s163A of
    the Act[1].

Proceedings of a kind in FCR r10.42

  1. These proceedings are the kind of proceedings listed in items 1, 12,
    13, 14, 15 and 18(b) of the table in FCR r10.42.

  2. These proceedings are based on causes of action arising in Australia
    (item 1) by virtue of the Respondents' contraventions of the Act
    (item 12) which include the Cartel Claim and the s45 Claims.

  3. These proceedings are seeking relief in relation to damage suffered
    by Group Members [OA 16] located in Australia (item 13), and other
    countries, by inter alia the Cartel Claim and the s45 Claims.

  4. These proceedings are in relation to the construction, effect or
    enforcement of the Act (item 14) seeking relief or remedy under
    sections 80, 82, 87 and 163A of the Act (item 15) in which the
    persons to be served are corporations carrying on business in
    Australia (item 18(b)).

Prima Facie Case

  1. In order to establish a prima facie case for the purposes of FCR
    r10.43(4) it is sufficient for the Applicant to demonstrate that
    findings of fact are available and inferences are open to be drawn,
    which support one cause of action for a ground of relief
    claimed[2], including an injunction or declaration under ss80 or
    163A of the Act.

  2. The relevant principles for demonstrating a prima facie case, in
    the context of an application for leave to serve documents on the
    First Respondent, are conveniently set out in the recent Australian
    Information Commission v Facebook Inc
    judgements.[3]

  3. The requirement is "not particularly onerous".[4]

  4. While a prima facie case could be established solely by reference
    to the Respondents' contraventions of the Act in Australia, the
    Applicant submits that the Respondents are subject to the Act in
    relation of their global conduct because they carry on business in
    Australia.

Doing Business in Australia

  1. It is well established that a foreign corporation carrying on
    business in Australia is subject to the jurisdiction of Australian
    Courts and is liable for contraventions of Part IV of the Act and
    ACL s18 in relation to its conduct outside Australia by virtue of
    s5(1)(g) of the Act.[5]

  2. The extent to which a legislative provision operates
    extra-territorially is a matter of construction only.[6] Since
    Meyer Heine, Parliament has made its intention clear in s5 of the
    Act that the modern restraint of trade provisions reflected in Part
    IV of the Act operate extra-territorially where a corporation
    carries on business in Australia.

  3. Even where s5(1) does not apply, only the actual conduct which is
    proscribed, and not every defined term contained in a statutory
    prohibition, is required to have a territorial connexion to
    Australia.[7]

  4. In Tiger Yacht Management Ltd v Morris[8] the Full Court observed
    that "carrying on business":

    1. may have different meanings in different contexts;

    2. requires resort to the usual or ordinary meaning of the phrase
      and invites a factual inquiry;

    3. require activities forming a commercial enterprise;

    4. implies the repetition of acts and activities which possess
      something of a permanent character;

    5. does not require an identifiable place of business in Australia.

  5. In Valve (at [149]) the Full Court observed that the territorial
    concept of "carrying on business" involves acts within the relevant
    territory that amount to, or are ancillary to, transactions that
    make up or support the business and there is no requirement for a
    human, physical presence in the territory.

  6. In AIC No 2, this Court found that, on a prima facie basis, the
    First Respondent carried on business in Australia in 2014 and 2015,
    even when it was not the contracting party with Australian resident
    customers.[9] This finding was made on the basis of the
    installation and operation of cookies on Australian user's devices,
    the provision of the Graph API to Australian developers and the
    collection and storage of information in Australia via caching
    servers. Those findings are equally applicable here.

  7. In addition to the grounds argued in AIC No 2, the First
    Respondent was the contracting party supplying services to thousands
    of US and Canadian residents traveling in Australia in the 29
    January - 19 April 2018 period (including the Canadian Commonwealth
    Games team). See 6 Sep Affidavit (Annex A) page 9 (CCB p51)**,
    clauses 18.1 (contracting party) and 12 July Affidavit (Annex A)
    (CCB pp274 - 289).

  8. The First Respondent was the the contracting party with millions of
    Australian resident users of Facebook Services from 19 April 2018
    onwards. See 6 Sep Affidavit (Annex B) page 15 (CCB p57)**
    clauses 4.5.1 (entire agreement and contracting party) and the ACCC
    Report (CCB p153).

  9. The Second Respondent was the contracting party with millions of
    Australians for a wide range of services including gmail, Google
    Play Store, Chrome Browser, Google Maps and Google Cloud during the
    whole Relevant Period. See 6 Sep Affidavit (Annexes M & N), pages 54
    & 68 (CCB pp96 & 110)** and the ACCC Report (CCB p153).

  10. Each of the Respondents provided interactive, transactional services
    in Australia on a repetitive basis and generated substantial revenue
    from showing advertising specially targeted to those users in
    Australia on a repetitive, interactive and transactional basis. The
    Respondents' activities in Australia are longstanding and of a
    permanent character. See ACCC Report (CCB pp144 - 200 esp. pp151 -
    153, 164 - 168)
    .

  11. Thus both Respondents were carrying on business in Australia during
    the Relevant Period and are subject to the Act in relation to their
    worldwide activities by virtue of s5(1) of the Act.

Prima Facie contraventions of the Act

  1. The Applicant relies on three of his multiple pleaded causes of
    action for the purpose of establishing prima facie contraventions
    of the Act in this interlocutory application:

    1. that the Respondents gave effect to cartel provisions in their
      Standard Contracts in contravention of s45AK of the Act;

    2. that the Respondents gave effect to provisions in their Standard
      Contracts which had the effect of substantially lessening
      competition in the market(s) for cryptocurrencies in Australia
      in contravention of s45(1)(b) of the Act;

    3. that the Respondents engaged in a concerted practice which had
      the effect of substantially lessening competition in the
      market(s) for cryptocurrencies in Australia in contravention of
      s45(1)(c) of the Act.

Cartel Claim

  1. The Applicant has established, to at least the prima facie case
    standard, that the Ad Ban Provisions satisfy all three elements of
    the definition of cartel provision in s45AD of the Act: contract
    (s45AD(1)), purpose condition (s45AD(3)) and competition condition
    (s45AD(4)) and that they gave effect to these cartel provisions in
    breach of s45AK of the Act.

  2. Whilst now known as "cartel provisions", for most of the history of
    Australian competition law these provisions were known as the s4D
    exclusionary provisions of the Trade Practices Act 1974, which
    first took their place in Australian law via the Trade Practices
    Amendment Act
    1977 (Act 81 of 1977).

  3. The 2017 Harper Reforms merged the prohibition on exclusionary
    provisions previously contained in ss4D, 45(2)(a)(i) and 45(2)(b)(i)
    of the Act into Division 1 - Cartel Conduct (first inserted
    in 2009) and renumbered them: defining "cartel provisions" in s
    45AD; and setting out civil and criminal contraventions in ss45AF to
    45AK of the Act.

Contracts

  1. A cartel provision under s45AD can be in a contract, arrangement or
    understanding and the Cartel Claim is based on cartel provisions in
    the Respondents' Standard Contracts.

  2. The term "contract" in s45AD "is well understood. In simple terms,
    a contract is made when an offer made by one party is accepted by
    another, supported by consideration, and there is an intention to
    create a legally binding relationship.
    "[10]

  3. Whilst it is rare for cartel provisions to be set out in formal
    contracts[11], it is more common with exclusionary cartel
    provisions.[12]

  4. The evidence that the Respondents have Standard Contracts with all
    their users which form by the operation of their standard terms and
    conditions and their users' use of their services, and which
    incorporate many policies, including those where the Ad Ban
    Provisions were added, is set out below.

    1. Facebook Ireland's [SoC 21] Standard Contract with its users
      for the period prior to 19 April 2018. See 6 Sep Affidavit
      (Annex A) page 5 (CCB p47).

      1. page 5 (CCB p47), under Statement of Rights and
        Responsibilities (establishes contract by use of Facebook
        services);

      2. page 7 (CCB p49), clause 10 (incorporation of
        policies) and 13.3 (continued use means acceptance of
        amendments);

      3. page 9 (CCB p51), clauses 18.1 (contracting party) and
        18.2 (entire agreement) and penultimate paragraph
        (incorporation of policies).

    2. Facebook is taken to be a party to Facebook Ireland's contracts
      by virtue of s45AC of the Act, because they are related bodies
      corporate. The evidence adduced in Applicant's 1 March 2021
      affidavit ("1 Mar Affidavit") (Annex M) page 138 (CCB
      p248
      )** establishes that Facebook Ireland is a related body
      corporate of Facebook.

    3. Facebook's Standard Contract with its users for the period after
      19 April 2018. See 6 Sep Affidavit (Annex B) page 10 (CCB
      p52)
      :

      1. page 10 (CCB p52) under Terms of Service (establishes
        contract);

      2. page 14 (CCB p56) clause 4.1 (continued use means
        acceptance);

      3. page 15 (CCB p57) clauses 4.5.1 (entire agreement and
        contracting party) and 4.5.1 (incorporation of policies);

      4. page 16 (CCB p58) clause 5 (incorporation of
        policies).

    4. Google Australia's Standard Contract with AdWords advertisers.
      See 6 Sept Affidavit (Annex G), page 35 (CCB p77) under
      Advertising Program Terms (establishes contract and contracting
      party) and clause 2 (incorporation of policies).

    5. Google is taken to be party to Google Australia's contracts by
      virtue of s45AC of the Act, because they are related bodies
      corporate. The evidence adduced at 1 Mar Affidavit (Annexes N
      and O), pages 140 & 143 (CCB pp 250 & 253) establishes
      that Google Australia is a related body corporate of Google.

    6. Facebook is unable to recognize advertising revenue under
      relevant accounting standards unless it can identify a contract
      with each advertiser paying such monies to it. Facebook
      recognized over US$55 billion in revenue in 2018 by such
      method. See 1 Mar Affidavit (Annex P) page 146 (CCB p256).

    7. Alphabet Inc is unable to recognize advertising revenue under
      relevant accounting standards unless it can identify a contract
      with each advertiser paying such monies to Google. Alphabet Inc.
      recognized over US$116 billion in revenue in 2018 by such
      method. See 1 Mar Affidavit (Annex Q) page 147 (CCB p257).

  5. Thus each Respondent admits that contracts are indeed formed by the
    above methods with all persons who acquire online advertising
    services from each Respondent.

  6. Those persons include the other Respondent, as Facebook and Google
    acquire online advertising services from each other.

    1. Facebook uses Google advertising services and thus is a party to
      Google's Advertising Program Terms containing the Ad Ban
      Provisions. See 12 July Affidavit (Annex B) (CCB pp290 -
      291)

    2. Google has many Facebook pages and thus is a party to Facebook's
      Standard Contract containing the Ad Ban Provisions. See 12 July
      Affidavit (Annex C) (CCB pp292 - 293)

Purpose Condition

  1. Section 45AD(3)(a) of the Act sets out the relevant purpose
    condition which is satisfied "if the provision has the purpose of
    directly or indirectly preventing, restricting or limiting
    ":

    1. the supply of "services to persons or classes of persons by any
      or all of the parties to the contract
      " s45AD(3)(a)(iii); or

    2. the acquisition of "services from persons ...by any or all of
      the parties to the contract" s45AD(3)(a)(iv)
      .

  2. Section 4F of the Act provides that a contractual provision is
    deemed to have a particular purpose if the provision was included in
    the contract for that purpose, or a purpose which included that
    purpose, and that purpose was a substantial purpose.

  3. Section 45AD(9) provides that the provisions of any or all contracts
    to which a corporation and its related bodies corporate are a party
    are to be considered together to determine whether a provision is
    taken to have a s45AD(3) purpose.

  4. "Purpose is to be distinguished from motive. The purpose of conduct
    is the end sought to be accomplished by the conduct. The motive for
    conduct is the reason for seeking that end.
    "[13]

  5. "[T]he manifest effect of a provision in an agreement, in a given
    case, may be the clearest indication of its purpose
    "[14].

  6. Each Respondent introduced Ad Ban Provisions into its Standard
    Contract which had substantial purposes to restrict or prevent:

    1. the supply of online advertising services to a class of persons
      (members of the Cryptocurrency Industry) by that Respondent; and

    2. the acquisition of online advertising services from that
      Respondent by each member of the Cryptocurrency Industry who was
      party to that Respondent's Standard Contract.

    3. (the "Substantial Purposes")

  7. The evidence that the Respondents introduced Ad Ban Provisions with
    the Substantial Purposes is set out below, from the 6 Sep Affidavit:

    1. Annex C, pages 18-19 (CCB pp60 - 61): Facebook's new
      Prohibited Financial Products and Services policy (#29) dated 30
      Jan 2018 banning cryptocurrency advertising.

    2. Annex D, page 26 (CCB p68): Facebook[']{dir="rtl"}s
      Updated Prohibited Financial Products and Services policy dated
      26 June 2018 slightly relaxing its Ad Ban.

    3. Annexes E and F, page 31 & 34 (CCB pp 73 & 76): Facebook's
      new Cryptocurrency Products and Services policy (#11) from 8 May
      2019 substantially relaxing its Ad Ban, but continuing the
      complete ban on ICO advertising.

    4. Annex H, page 40 (CCB p82): Google's updated Restricted
      Financial Services Policy dated March 2018 with effect from June
      2018 banning cryptocurrency advertising.

    5. Annexes I, J, K & L pages 42 - 44, 47 - 49 & 50 - 52 (CCB
      pp83 - 85, 86, 87 - 89 & 92 - 94)
      : Google's updates to its Ad
      Ban policies.

  8. Section 45AD(9) requires all the Ad Ban Provisions in all the
    Standard Contracts of both Respondents to be considered together in
    determining purpose.

  9. These Substantial Purposes are clear both from the manifest effect
    of the Ad Ban Provisions and from the Respondent's claimed reasons
    in statements surrounding their announcement.

  10. In particular, even if the Respondents' motive was to protect
    consumers from products which the Respondents (falsely) claimed were
    "frequently associated with misleading or deceptive promotional
    practices
    ", the effect that was intended to be achieved by the
    broad ban implemented in the Ad Ban Provisions, in accordance with
    that motive, was to prevent such products being advertised at all
    on the Respondents platforms. This necessarily included the
    Substantive Purposes.

  11. Thus even an ostensibly "good" motive can lead to an unlawful
    purpose. The road to hell is paved with good intentions.

  12. Furthermore, even this "good" motive was tainted by both an
    anti-competitive ulterior motive and the collective punishment of an
    entire industry for unproven alleged deceptive behavior of a few
    persons who may not even have been actual members of that industry.

  13. Even on the limited evidence available from public sources,
    inferences are available to be drawn that Facebook had an ulterior
    motive to hamper and delay the emergence of
    cryptocurrency/blockchain based competitors to its core businesses
    while allowing time for Facebook to develop its own cryptocurrency.

  14. In the same month that Facebook introduced its Ad Ban (Jan 2018):

    1. it secretly set up the Calibra business unit to develop its own
      cryptocurrency (Libra), which became public 18 months later, and
      appointed Morgan Beller as its head - see 12 July Affidavit
      ([14] - [15] and Annexes E & F) (CCB pp271 - 272, 295 -
      308)
      ;
      and

    2. its CEO, Mark Zuckerberg, publicly stated that cryptocurrency
      was an important counter-trend to centralized power. See 12 July
      Affidavit (Annex D) (CCB p294).

  15. When Libra was announced in June 2019 its advertising material
    touted exactly the same fundamental features of cryptocurrency which
    Facebook had explicitly prohibited advertisers from promoting on its
    platform in relation to other cryptocurrencies. See 12 July
    Affidavit (Annex E1) (CCB p307).

  16. This ulterior motive led to the same Substantial Purposes as well as
    additional purposes to restrict other supplies and acquisitions
    which are pleaded but not advanced in this interlocutory
    application.

  17. The Substantial Purposes are also evident from:

    1. the 10 Dec Affidavit (Annex N) pages 62-63 (CCB pp202 -
      203
      ). Facebook's cryptocurrency ad refusal notification
      states: "
      Unfortunately, we don't support your business model.
      If you wish to continue advertising on Facebook, we suggest
      promoting a different service or product
      ."

    2. the Respondents' admissions that they intentionally adopted
      broad prohibitions without assessing specific risk of any
      particular cryptocurrency related advertisement. Such broad
      implementation necessarily involved the Substantial Purposes.
      See 6 Sep Affidavit (Annex C) page 19 (CCB p60)** Facebook
      states: "This policy is intentionally broad ..." and 10 Dec
      Affidavit (Annex M), page 61 (CCB p201). Google admits its
      motive was to ["]{dir="rtl"}
      manage risks associated with online
      consumerism
      " in a broad manner.

Competition Condition

  1. Section 45AD(4) sets out the competition condition which "is
    satisfied if at least 2 of the parties to the contract
    " "are or
    are likely to be
    " 'in competition with each other" in relation to
    the supply or acquisition of those goods or services referred to in
    the relevant sub-clause of the Purpose Condition.

  2. "Competition expresses itself as rivalrous market behavior." "It
    is a process rather than a situation.
    "[15]

  3. "Competition in a market is not assessed by a snapshot view of
    participant behaviour at a particular time. The theatre of
    competition is a theatre of real actors and shadow actors. The
    shadows are cast by the potential for new entry. The competitive
    process is informed by the rivalry of the participants and the
    potential rivalry of potential participants. Competition so
    understood is conceptually distinct from the idea of the market and
    the elements of market structure which may constrain or facilitate
    it.
    "[16]

  4. There is no requirement to plead or prove the existence of a market
    (in Australia or otherwise) in s45AD(4) of the Act[17] or elsewhere
    in Division 1 - Cartel Conduct of Part IV of the Act. Such a
    requirement is only applicable in Division 2.

  5. In Yazaki, at [81 - 133], the Full Federal Court considered in
    great detail and rejected Yazaki's arguments for a
    reading-in of a market requirement into the
    "competitive with each other" language in the former s
    4D "exclusionary provisions" of the Act. Its reasons
    included the legislative purpose and history of the exclusionary
    provisions.

  6. The Harper Reform changes to the Act completely separated cartel
    conduct (Division 1) from other anti-competitive conduct
    (Division 2) and removed it from s45, thus eliminated the arguments
    supporting Yazaki's statutory construction.

  7. The services which are the subject of the Substantial Purposes for
    the Purpose Condition, and thus relevant for the Competition
    Condition, are online advertising services. Online advertising
    services includes search ads, classified ads and display ads
    (including the places in which they are displayed) as described in
    sections 3.1.3 and 3.1.4 of the ACCC Report (CCB 173-174).

  8. The Respondents are in competition with the persons to whom they
    supply online advertising services ("Prosumers") in relation to
    both the supply and acquisition of online advertising services
    because:

    1. the Respondents both supply and acquire online advertising
      services (including for the purpose of re-sale); and

    2. Prosumers acquire online advertising services from the
      Respondents (under the Standard Contracts) and other suppliers;

    3. many Prosumers also supply online advertising services to the
      Respondents and others (in the form of advertising space on
      their websites and apps).

  9. The evidence that Facebook supplies online advertising services and
    that Prosumers acquire online advertising services is set out below:

    1. Annex D to 27 Aug Affidavit: Facebook 2019 Annual Report ("FB
      Report
      "):

      1. Page 30 (CCB p14): "Substantially all our revenue is
        generated from third parties advertising on Facebook and
        Instagram
        ."

      2. Page 31 (CCB p15): list of factors affecting
        advertising revenue, particularly those relating to
        "marketers".

    2. The evidence referred to in paragraph 38.6 above regarding the
      requirement for identification of a contract with a user for the
      purposes of accounting revenue recognition.

  10. The evidence that Facebook acquires online advertising services,
    both for own use and resale, and that many Prosumers supply online
    advertising services is set out below, from the FB Report:

    1. Own Use: Page 100 (CCB p26), Advertising Expense: $1.57
      billion in 2019;

    2. Resale: Page 73 (CCB p23) under heading Revenue -
      Advertising: "Our advertising revenue is generated by
      displaying ad products on Facebook, Instagram, Messenger, and
      third-party affiliated websites or mobile applications
      ."
      [emphasis added].

    3. Resale: Page 73 (CCB p23) under heading Revenue -
      Advertising: "For advertising revenue arrangements
      where we are not the principal, we recognize revenue on a net
      basis.
      "

  11. The evidence that Facebook admits that it is in competition with a
    very wide range of businesses that supply and acquire online
    advertising services is set out below from the FB Report:

    1. Pages 26 - 27 (CCB pp10 - 11) under heading Competition,
      including statement: "We compete with companies which sell
      advertising ...
      " and list of types of competitors;

    2. Pages 33 -34 (CCB pp17 - 18) under the heading "Our
      business is highly competitive
      ".

  12. The evidence that Google supplies online advertising services and
    that Prosumers acquire online advertising services is set out below:

    1. Annex E to 27 Aug Affidavit, Google 2019 Annual Report ("GG
      Report
      ") at page 185 (CCB p37) under heading Nature of
      Operations "We generate revenues primarily by delivering
      relevant, cost-effective online advertising.
      "

    2. The evidence referred to in paragraph 38.7 above regarding the
      requirement for identification of a contract with a user for the
      purposes of accounting revenue recognition.

  13. The evidence that Google acquires online advertising services, both
    for own use and resale, and that many Prosumers supply online
    advertising services is set out below, from the GG Report:

    1. Own Use: Page 189 (CCB p38) Advertising Expenses: US$6.8
      billion in 2019.

    2. Resale: Page 159 (CCB p36) "Google advertising revenues
      are generated on our Google properties ... and Google Network
      Members' properties. ... [which] consist of revenues generated
      primarily [by those] participating in AdMob, AdSense and
      Google Ad Manager
      " and page 136 (CCB p33) under heading
      "Competition".

  14. The evidence that Google admits that it is in competition with a
    very wide range of businesses that supply and acquire online
    advertising services is set out below from the GG Report:

    1. Page 7 (CCB p33) under heading Competition listing types
      of competitors.

    2. Page 9 (CCB p35) under the heading "We face intense
      competition...
      ".

  15. Further evidence of the nature of the online advertising space where
    both the Respondents and Prosumers are both suppliers and acquirers
    of online advertising services and are thus competitive with each
    other is contained in the ACCC Digital Platforms Enquiry Final
    Report, Annex L to the 10 Dec Affidavit. In particular:

    1. at page 7 (CCB p154) where the ACCC states: "The
      advertising businesses of both Google and Facebook now extend
      well beyond their core owned and operated platforms. Both
      platforms sell advertising opportunities on third party websites
      and apps which are part of their respective advertising
      networks, as well as on the platforms they own and operate
      ."

    2. at page 122 (CCB p173) where the ACCC notes that
      traditional media business and other online digital platforms
      are competitive with Facebook and Google and that "any website
      can offer ad inventory
      ".

    3. at page 123 (CCB p174) where the ACCC refers to "ad tech
      services
      " including the Respondents' mechanisms facilitating
      the resale of advertising space on third party websites.

Giving Effect to Cartel Provisions

  1. Section 45AK of the Act provides that if a "contract ... contains a
    cartel provision
    " and a "corporation gives effect to the cartel
    provision
    ", the corporation contravenes the section.

  2. Section 4 of the Act provides that '"give effect to", in
    relation to a provision of a contract, arrangement or understanding,
    includes do an act or thing in pursuance of or in accordance with or
    enforce or purport to enforce.
    '

  3. 'It is apparent from s 4 that ["]{dir="rtl"}give effect to" focuses
    on the implementation of the contract, arrangement or understanding
    at issue. There is no explicit knowledge requirement in the text of
    s 4.'
    [18]

  4. The evidence that each of the Respondents gave effect to their Ad
    Ban Provisions is set out below from the 6 Sep Affidavit:

    1. Facebook's announcements of its cryptocurrency Ad Ban and
      revisions to the Ad Ban (Annex C (CCB p60, Annex D*
      (CCB p68) and Annex E (CCB p73).

    2. Google's announcements of its cryptocurrency Ad Ban and
      revisions to the Ad Ban Annex H, (CCB p 82) and Annex J,
      (CCB p86).

    3. Annex C, page 19 (CCB p61): Facebook's statements:
      "enforcement will begin to ramp up across our platforms", "we
      will revisit this policy and how we enforce it
      " we "encourage
      our community to report content that violates our Advertising
      Policies. People can report any ad on Facebook by clicking the
      upper right-hand corner of the ad.
      "

    4. Annex D, page 26 (CCB p68): Facebook's statements
      referring to the above enforcement steps in the past tense and
      requesting users to: "Please continue to report content that
      violates our Advertising Policies ...
      "

    5. Annex E, page 31 (CCB p73): Facebook's references to
      enforcement mechanisms: ads directed to a landing page which
      includes an ICO will be rejected; ads which feature a
      Cryptocurrency Exchange will require approval; and to the
      "signals" Facebook uses to review applications for advertising.

    6. Annex K, page 47 (CCB p89): Google' references to approval
      processes and link on "how to fix a disapproved ad or
      extension
      ."

  5. Further evidence of each of the Respondents giving effect to their
    Ad Ban Provisions is set out in:

    1. The 10 Dec Affidavit (Annex N) (CCB pp203 - 203) which
      contains evidence of Facebook giving effect to the Ad Ban
      Provisions by disapproving ads related to cryptocurrency.

    2. The 1 Mar Affidavit (Annex R), pages 149 - 158 (CCB p259 -
      268)
      which contains evidence of Google giving effect to the
      Ad Ban Provisions by disapproving ads with cryptocurrency
      associated keywords.

    3. The video of Facebook CEO Mark Zuckerberg's testifying, under
      oath, before the US Senate regarding Facebook's internal systems
      for blocking content and the coordination between Facebook and
      Google employees in blocking content. Annex P to 10 Dec
      Affidavit.

Continued in second post


Endnotes


  1. Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153
    (["Bray Appeal") at [166 - 170].

  2. Bray Appeal at [55] per Carr J, at [190 - 191] per Branson
    J; Australian Information Commissioner v Facebook (No 2) [2020]
    FCA 1307 ("AIC No 2") at [26 - 39].

  3. Australian Information Commission v Facebook Inc [2020] FCA
    531 ("AIC No 1") at [30] to [32] and AIC No 2 at [26] &
    [27].

  4. Australian Competition and Consumer Commission v Yellow Page
    Marketing BV
    [2010] FCA 1218 at [25].

  5. Valve Corporation v Australian Competition and Consumer
    Commission
    [2017] FCAFC 224 at [143] citing with approval Bray
    v F Hoffmann-La Roche Ltd
    [2002] FCA 243 ("Bray No
    1
    ") at [60]; Australian Competition and Consumer Commission v
    Yazaki Corporation
    [2018] FCAFC 73 at [28, 30, 40-45, 90].

  6. Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11;
    (1966) 115 CLR 10 at [3] per Kitto and McTiernan JJ, [6] per
    Taylor J and [2] per Menzies J.

  7. Worldplay Services Pty Ltd v Australian Competition & Consumer
    Commission
    [2005] FCAFC 70 at [22 - 24]; Norcast S.ár.L v
    Bradken Limited (No 2)
    [2013] FCA 235 at [226 - 241].

  8. [2019] FCAFC 8 at [50 - 53].

  9. AIC No 2 at [156].

  10. Australian Competition and Consumer Commission v
    Colgate-Palmolive Pty Ltd (No 4)
    [2017] FCA 1590 at [46].

  11. ibid.

  12. See Safer Storage Systems v Dexion (Australia) [2019] FCA
    1784 at [103 - 105]; News Ltd v South Sydney District Rugby
    League Football Club Ltd
    [2003] HCA 45; 215 CLR 563; 200 ALR 157;
    77 ALJR 1515.

  13. News Ltd v South Sydney at [18] per CJ Gleeson. See also per
    Gummow J at [59], [60] & [63] and per Callinan J at [211]
    agreeing with the trial Judge's definition of subjective purpose set
    out at [59] which was accepted as correct by each member of the
    Full Court at [60]. McHugh J also accepted this definition at
    [43]. See also Australian Competition and Consumer Commission v
    Cascade Coal Pty Ltd
    [2019] FCAFC 154 at [166].

  14. News Ltd v South Sydney as [18] per CJ Gleeson. See also
    Cascade Coal at [167].

  15. Re Queensland Co-Op Milling Association Limited and Defiance
    Holdings Limited
    )

    (1976) 8 ALR 481; (1976) ATPR 40--012 ("QCMA") at ALR
    515[40]; ATPR, [17,246]. Cited with approval in Australian Gas
    Light Company (ACN 052 167 405) v Australian Competition & Consumer
    Commission (No 3)
    [2003] FCA 1525 ("AGL v ACCC") at
    [349].

  16. AGL v ACCC at [350]. Quoted with approval by Full Court in
    Cascade Coal at [157].

  17. Yazaki at [133].

  18. Yazaki at [70].