I. Introduction

The Australian Competition and Consumer Commission (“ACCC”) has initiated litigation in the Federal Court of Australia (“Court”) against Google LLC and Google Australia Pty. Ltd. (“Google”) for alleged violations of Australian Consumer Law. The ACCC has alleged that Google has misrepresented facts to the consumers on the collection of location data. The matter reflects a significant expression of concern over data use and similar actions may follow in multiple other countries.

II. The case

1. The ACCC was directed by the Australian Federal Government to analyse the impact of online search engines, social media, and digital content aggregators on competition in media and advertising markets. It published its final report for the Digital Platforms Inquiry in July 2019[1], which assessed consumer and privacy-related concerns in detail amongst other aspects. This suit is an enforcement action by the ACCC in furtherance of its attempts to improve the accountability of technology service providers regarding the privacy of consumers. A perusal of ACCC’s concise statement submitted to the court[2]  reveals that the allegations on Google are two-pronged: firstly, that user location data was collected through misrepresentation and uninformed consent and secondly, that Google misrepresented the purpose of collection of such data, stating it to be used only for the user’s purposes while it had been used for Google’s purposes of advertisements and analytics.
2. On its first allegation, the ACCC contends that unlike the representation made to the consumers via Android with respect to Google’s access to the user’s location history, it’s the default mode of being turned “off” did not prevent the collection of location data of the users. It contended that the default setting on the collection of “Web and App Activity” was “on” and this enabled collection of personal data, inclusive of location data. The ACCC contends that Google misrepresented that there was a simple way to prevent the collection of location data of a user from a device linked to a Google Account. While Google had the access to the location data of a user through the “Web and App Activity” settings, the user was not made aware of the possibility of collection of personal data with respect to location.
3. ACCC has further contended that Google used the location data so collected for its own purposes, including inferring demographic information, facilitation of advertisement services for other users and third parties, analysing such data and sharing the resultant statistics with its advertisers. Monetary benefits from such usage would logically follow. It alleged misleading and deceptive conduct and false or misleading representation since Google states the data so collected would be used only for the user’s purposes. Punitive damages are sought from Google for making such representations, as well as other acts of non-compliance with the provisions of the Australian Consumer Law.

III. Google’s contention

1. Google has claimed the ACCC’s contentions to be “out of context” and that they do not reflect the actual handling of location data by Android devices. It stated that providing certain information and not providing other information at the same time does not amount to a ‘representation’. It has hence asked for clarifications on ACCC’s allegations.
2. Taking into consideration the possibility of delay in the process of adjudication, the Court has passed two orders. It has directed Google to send a letter to the ACCC detailing the clarifications it seeks regarding the issues and has further directed ACCC to provide the same.

IV. Google- a repeat offender?

1. The ACCC’s challenge to Google’s data use practices adds to a sizeable list of challenges it faces from regulators across the globe. In January this year, France’s Data Protection Office fined Google 50 million euros for privacy breach under the European General Data Protection Regulation. The Federal Trade Commission of the United States fined Google a massive $ 170 million in September for the collection of personal data of children without the consent of their parents.
2. The Irish Data Protection Commission has initiated a privacy probe against Google for alleged violation of privacy in the use of personal data for advertisements. Privacy regulators in Germany have also received multiple complaints against Google Analytics cookies deployed on end-user devices. In the United Kingdom, an ongoing case in its Court of Appeal against the alleged sale of data of iPhone users to third party advertisers in 2011-2012 is likely to result in Google paying large amounts as damages. The rise in the number of claims against Google’s practices on user data leaves it susceptible to paying considerable amounts as penalties and damages across the globe.

V. Comments

We expect similar actions to follow in Asia. Watch this space for developments in this matter and other similar matters.

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Footnotes:

1.Accessible at: https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf.

2.Accessible at: https://www.accc.gov.au/system/files/Concise%20Statement_ACCC%20v%20Google%20Australia%20Pty%20L td%20%26%20Anor_%2029.10.19.pdf.

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