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

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.
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

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

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

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

Proceedings of a kind in FCR r10.42

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.
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.
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.
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

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.
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]
The requirement is "not particularly onerous".^[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

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]
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.
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]
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.
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.
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.
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).
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).
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).
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).
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

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

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.
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).
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

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.
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]
Whilst it is rare for cartel provisions to be set out in formal
contracts^[11], it is more common with exclusionary cartel
provisions.^[12]
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).
Thus each Respondent admits that contracts are indeed formed by the
above methods with all persons who acquire online advertising
services from each Respondent.
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

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).
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.
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.
"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]
"[T]he manifest effect of a provision in an agreement, in a given
case, may be the clearest indication of its purpose"^[14].
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")
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.
Section 45AD(9) requires all the Ad Ban Provisions in all the
Standard Contracts of both Respondents to be considered together in
determining purpose.
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.
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.
Thus even an ostensibly "good" motive can lead to an unlawful
purpose. The road to hell is paved with good intentions.
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.
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.
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).
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).
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.
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

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

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.
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.'
'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]
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."
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

Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153
(["Bray Appeal") at [166 - 170]. ↩
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]. ↩
Australian Information Commission v Facebook Inc [2020] FCA
531 ("AIC No 1") at [30] to [32] and AIC No 2 at [26] &
[27]. ↩
Australian Competition and Consumer Commission v Yellow Page
Marketing BV [2010] FCA 1218 at [25]. ↩
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]. ↩
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. ↩
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]. ↩
[2019] FCAFC 8 at [50 - 53]. ↩
AIC No 2 at [156]. ↩
Australian Competition and Consumer Commission v
Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590 at [46]. ↩
ibid. ↩
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. ↩
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]. ↩
News Ltd v South Sydney as [18] per CJ Gleeson. See also
Cascade Coal at [167]. ↩
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]. ↩
AGL v ACCC at [350]. Quoted with approval by Full Court in
Cascade Coal at [157]. ↩
Yazaki at [133]. ↩
Yazaki at [70]. ↩