When accessing the records of the Austrian Wein&Co (17Ob1/07g) decision and finding a black/white screenshot I was surprised to see how much the layout and the colours of the Google Search Engine Results Page have changed.
Ever since I’ve started working on this topic I had huge difficulties understanding why the Austrian Supreme Court judged that Top-Ads, displayed above the (organic) search results, should be treated as if they were a part of the search results. The court in this way was (implicitly) suggesting that Google engaged in paid placement (Paid Placement = Keyword Buying)… In the course of my PhD, I requested that the lower instances (the HG Wien as well as the OLG Wien) supply me with anonymised copies of their decisions. Something that truly surprised me was a screenshot of the incremented ad in 2005 which was attached to the HG decision:
The (in 2005 still: light blue) colouring of the Top-Ad (which the Austrian Supreme Court has also expressively mentioned in its decision as acting as “highlighting”) was in the HG version simply not visible (anymore). It would be interesting to know if the court was originally supplied with a copy that was of higher quality and in colour. However as Google just changed the background of its ads from light blue to yellowish in April 2007 the judges might still have seen the original colour.
Just looking at the screenshot, would you have immediately identified the Top-Ad as an ad? I didn’t! (although I am not, not even implicitly, saying that the OGH based his decision on these screenshots alone!)
Just to assist your memory in trying to remember what the Google SERP looked like 2 years ago:
Furthermore, it might be worth mentioning that the first screenshot must have been taken on quite a small (presumably) laptop screen with low resolution and relatively big letters which caused the layout to squeeze together and made the screen look crammed (thus increasing likeliness of confusion?).
The second screenshot in the ANNEX, concerning a (Side-) Ad that was not found to be infringing by the OGH, was taken on a much larger screen, thus the letters appear much smaller and the whole site looks far less crammed and clearer.
A pure and nothing but a pure coincidence I reckon.😉