Updated: Jun 13, 2021
The Federal Court of Australia has recently found that Google has breached Australian Consumer Law when it misled Australian mobile and tablet users about location data collection.
Author: Farrah Motley, a Solicitor of the Supreme Court of Queensland
Misleading and Deceptive Conduct
Under the Australian Consumer Law (set out in the Competition and Consumer Act 2010 (Cth)), it is unlawful for businesses to mislead or deceive consumers. Conduct will be considered to breach the Australian Consumer Law if it does, or is likely to, mislead or deceive an ordinarily and reasonable member of the class of persons to whom the conduct is directed.
The Offending Conduct of Google
When Google's customers created a new Google Account during the initial set-up process of their Android device, Google misrepresented that the ‘Location History’ setting was the only Google Account setting that affected whether Google collected, kept or used personally identifiable data about their location. However, another Google Account setting called ‘Web & App Activity’ also enabled Google to collect, store and use personally identifiable location data when it was turned on, and that setting was a default setting which automatically turned on.
When Google's customers later accessed the ‘Location History’ setting on their Android device during the same time period to turn that setting off, they were also misled because Google did not advise them that by leaving the ‘Web & App Activity’ setting switched on, Google would continue to collect, store and use their personally identifiable location data.
Further, when Google's customers later accessed the ‘Web & App Activity’ setting on their Android device, they were misled because Google did not advise them that the setting was relevant to the collection of personal location data.
The ACCC alleged that it was “misleading for Google to not properly disclose to consumers that both settings had to be switched off if consumers didn’t want Google to collect, keep and use their location data”.
Justice Thawley, of the Federal Court, said that “Google’s conduct would not have misled all reasonable users... but Google’s conduct misled or was likely to mislead some reasonable users,” and “The number or proportion of reasonable users who were misled, or were likely to have been misled, does not matter for the purposes of establishing contraventions [of Australian Consumer Law].”
The penalties which will be imposed against Google will be determined at a later date. Google have indicated that they will seek to appeal the judgment.
This case demonstrates the willingness of the ACCC to prosecute for breaches of Australian Consumer Law, irrespective of the size and resources available to the likes of Google.
Author: Farrah Motley | Legal Principal
PROSPER LAW - A Law Firm for Businesses
M: 0422 721 121