Overview

Through a series of inquiries going back to 2019, Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), has shone a light on Google’s dominance in the supply of digital advertising technology (‘ad tech’) services in Australia and Google’s potentially anti-competitive behaviour. While the ACCC has not taken any action against Google related to the ad tech sector, class actions have been commenced alleging breach by Google of Australia’s competition laws, which are contested by Google. If a class action is successful, thereby demonstrating that Australia's laws are sufficient to address such anti-competitive behaviour, that may cool the enthusiasm of the Australian Government to introduce digital services sector-specific regulation.

A spotlight on ad tech in Australia

The ACCC has conducted numerous inquiries into digital platforms and digital services over the past six years. These include the Digital Platforms Inquiry, finalised in 2019; the Digital Advertising Services Inquiry, undertaken over the period 2020–2021 (the 'Ad Tech Inquiry'); and the Digital Platform Services Inquiry, which reported over the period 2020–2025.

As part of these inquiries, the ACCC has closely considered ad tech services. Ad tech services involve the use of complex algorithms and systems to intermediate in the sale of digital ads. Particular types of ad tech services are used by publishers, on the 'supply side', and others are used by advertisers, on the 'demand side', to facilitate the almost instantaneous sale of those ads. Examples of key ad tech services include supply-side platforms used by publishers to automate the sale of their ad inventory and the equivalent demand-side platforms used by advertisers to automate the ad buying process.

The ACCC expressed concern not only because of Google’s dominance in ad tech services but also because it is vertically integrated. In other words, it also provides services in related markets, in particular, it operates a web browser, the ubiquitous Google Chrome, as well as being a publisher, as the owner of services such as Google Search, YouTube and Gmail.

In each of its inquiries, the ACCC’s conclusions in relation to ad tech services were similar. In the Ad Tech Inquiry, the ACCC found that Google is the dominant provider of ad tech services across the supply chain, with over 90 per cent of digital ad impressions in 2020 passing through at least one Google service.^[1] In the report from that inquiry, the ACCC highlighted that, for over ten years, Google’s vertical integration and dominance in ad tech has enabled it to engage in practices that have gradually reduced competition and reinforced its market dominance.^[2]

Notwithstanding its findings, the ACCC has not taken any enforcement action against Google in relation to its ad tech services practices. It has been left to private litigation to test whether the ACCC's conclusions as to Google’s behaviour being anti-competitive withstand judicial scrutiny.

Class actions commenced against Google

Q News

The first class action, filed on 16 December 2024 by Q News and Sydney Times Media, alleged anti-competitive conduct by Google in breach of section 46 of the Competition and Consumer Act 2010 (the 'CCA').

Section 46 is the so-called 'misuse of market power' prohibition, though, strictly speaking, it does not require that a dominant market participant misuses its market power. Section 46 instead simply prohibits a firm that has a substantial degree of power in a market from engaging in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market. The relevant market may be a different market to that in which the firm has a substantial degree of market power.

In these proceedings, which appeared to rely on the findings from the ACCC inquiries, the class, that is, the Australia-based publishers who used particular Google ad tech services such as the supply-side platform Google Ad Exchange, were alleged to have suffered loss by receiving lower revenue than they would have otherwise received from selling their advertising space but for Google’s anti-competitive behaviour.

Riverine Grazier

A second class action against Google was filed on 14 February 2025 by Riverine Grazier and Mornington Peninsula News Group. The class under that claim is publishers, wherever located, who sold advertising space for ads to be displayed to consumers located in Australia. That class is broader than (and subsumed within) the Q News class action, where (as noted above) the class was limited to Australia-based publishers.

In addition to claiming breach of section 46 of the CCA, as had been claimed in the Q News class action, in these proceedings, it is also claimed that Google has breached the exclusive dealing prohibition under section 47 of the CCA and has engaged in unconscionable conduct in breach of section 21 of the Australian Consumer Law.

Although the Riverine Grazier class action is, with regard to both the class and the claims, broader than the Q News claim, the factual bases for both proceedings appear very similar, with reliance placed on the ACCC’s findings from its inquiries that Google had favoured its own ad tech services, restricted access to user data, refused to participate in particular types of digital ad sales, implemented the tying of different ad tech services and also misrepresented how certain Google ad tech services work.

Resolution of carriage dispute

Unsurprisingly, the applicants in each proceeding sought a permanent stay of the other under the Federal Court of Australia Act 1976, which allows proceedings to be stayed in the interests of justice. In Riverine Grazier Pty Ltd v Google LLC [2025] FCA 895, O’Bryan J sided with the Riverine Grazier class action and suspended the Q News proceeding.

O’Bryan J found that, while the two class actions arose from similar facts, each proposed a different approach and that the broader Riverine Grazier class action, both as to the class membership and regarding the claims made, should be allowed to proceed, and the Q News class action should be stayed.

The applicants in the Q News proceedings have determined not to appeal that decision, which now allows the Riverine Grazier proceedings to move forward. Google is contesting the matter.

Implications for the regulation of digital services

It is curious that the ACCC has not taken action against Google in relation to its supply of ad tech services, given its findings over a number of inquiries that Google has acted in an anti-competitive manner and has harmed competition in a market that the ACCC considers important in the context of both funding online content (including journalism) and helping businesses reach potential customers.

The reticence to commence proceedings seems to stem from a push by the ACCC for the Australian Government to introduce digital services sector-specific regulation, as evidenced by the following comments from former ACCC Chair, Rod Sims, at the time of the release of the Ad Tech Inquiry report in September 2021:^[3]

'We have identified systemic competition concerns relating to conduct over many years and multiple ad tech services, including conduct that harms rivals. Investigation and enforcement proceedings under general competition laws are not well suited to deal with these sorts of broad concerns, and can take too long if anti-competitive harm is to be prevented […]

Many of the concerns we identified in the ad tech supply chain are similar to concerns in other digital platform markets, such as online search, social media and app marketplaces. These markets are also dominated by one or two key providers, which benefit from vertical integration, leading to significant competition concerns. In many cases these are compounded by a lack of transparency […]

Sector-specific regulation, such as that proposed in this report, is not new. Other industries, such as telecommunications, have specific rules which can address particular competition and transparency concerns identified in those sectors.'

The Government has, however, been slow to act to introduce the ACCC’s proposed sector-specific regulation. Although it supported the ACCC’s recommendations and undertook consultation on a proposed new digital competition regime over December 2024 to February 2025,^[4] legislation to give effect to these reforms has not yet been introduced to the Australian Parliament.

The Riverine Grazier class action may throw a spanner in the works as to the Government’s willingness to proceed with the proposed new laws. In mid-2025 Epic Games was successful in the Australian Federal Court in a case arguing that both Apple and Google had misused their market power in breach of section 46 of the CCA as a result of the manner in which both tech giants run their app stores, particularly by banning or discouraging other app stores and websites.

While the ACCC argued that the Epic Games win does not obviate the need for sector-specific regulation, as the decision only relates to the specific facts that were before the Federal Court, many consumer advocates were quick to point out that, in fact, the decision would be likely to change the way that digital platforms and services operate in Australia. Of course, advocates for the largest tech companies also argued that the loss for Google and Apple meant Australia’s competition laws are in fact 'working' and are capable of being used in relation to digital platforms and services without the need for further regulation.

If the Government continues to drag its feet on implementing the sector-specific regulation that it has long promised, success in this class action may lead it to conclude that those laws are simply not necessary and that current laws, particularly the very broad misuse of market power provisions, are flexible enough to be used to address any anti-competitive practices in the digital services sector. If that is the conclusion, it would be expected that the Government would also urge the ACCC to take enforcement action under those existing laws.