On 16 April 2021, the Federal Court found that Google LLC and Google Australia Pty Ltd (Google) misled consumers about personal location data collected through Android devices for a period of two years from January 2017 to December 2018.
This decision, described by the ACCC as “world-first”, evidences an extension of the Australian Consumer Law (ACL) to personal information and displays the ACCC’s willingness to apply the ACL to matters of online data protection.
In October 2019, the ACCC instituted proceedings against Google alleging that Google, from at least January 2017, engaged in misleading conduct and made false or misleading representations to consumers about the personal location data that Google collects, keeps and uses.
The ACCC’s case focused on two Google account settings – one setting known as “Location History”, and another setting called “Web & App Activity”. The ACCC claimed that Google did not properly disclose to consumers that both settings were required to be switched off to prevent Google from collecting, keeping or using location data. In particular, the ACCC argued that Google led consumers to believe that only the “Location History” setting affected whether Google collected, kept or used users’ location data.
The Court found that the ACCC had established breaches or contraventions by Google of sections 18 (misleading or deceptive conduct), 29(1)(g) (false or misleading representation that goods or services had certain performance characteristics when that was not the case) and 34 (misleading the public as to the nature or characteristics of services) of the ACL. This was on the basis that the “Web & App Activity” setting also enabled Google to collect, store and use personally identifiable location data when it was turned on, and that the setting was automatically enabled by default. The Court also found that consumers were misled because, when turning off the “Location History” setting, Google did not inform them that by leaving the “Web & App Activity” setting switched on, Google would continue to collect, store and use their location data.
The Court ordered that both parties confer with a view to agreeing orders and appropriate further steps within 14 days. The ACCC is seeking declarations and monetary penalties, as well as an order for Google to publish a notice to consumers to better explain location data settings.
Under Australian privacy law, all communications with consumers regarding the collection or use of personal information must be transparent. This decision displays that non-transparency can also lead to enforcement action being taken under the ACL. As always, businesses must continue to ensure that all information provided to consumers is presented clearly, accurately and concisely.
If you have a question about this decision, please contact a member of the Addisons team.
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