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Is Big Brother Always Watching? ACCC v Google LLC

Malcolm Campbell ||

In what the ACCC is claiming to be a ‘world first’  enforcement action, it has been successful against Google in a matter that may be described as an extension of the consumer law to personal information and a demonstration of the ACCC’s willingness to apply the Australian Consumer Law (ACL) to matters of online data protection.

ACCC Chair Rod Sims said, “This is an important victory for consumers, especially anyone concerned about their privacy online, as the Court’s decision sends a strong message to Google and others that big businesses must not mislead their customers…[the] decision is an important step to make sure digital platforms are up front with consumers about what is happening with their data and what they can do to protect it.”

The ACCC instituted the court proceedings against Google alleging that Google engaged in misleading conduct and made false or misleading representations to consumers about the personal location data that Google collects, keeps and uses. It sought declarations and monetary penalties, as well as an order for Google to publish a notice to consumers to better explain the account settings in suit.

The ACCC position focused on the Google account settings:

  • Location History; and,
  • Web & App Activity.

The ACCC alleged that Google’s terms and conditions did not properly disclose to consumers that both settings were required to be switched off to avoid Google collecting, keeping or using location data. In fact, the ACCC alleged that Google led consumers to believe that only the “Location History” setting governed whether Google collected, kept or used users’ location data.

The Court held that Google had breached:

  • Section 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);
  • 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.
  • That consumers were misled because Google did not inform consumers when turning off the “Location History” setting that by leaving the “Web & App Activity” setting switched on, Google would continue to collect, store and use their location data.

In Australia, the Privacy Act requires that all communications with consumers regarding the collection or use of personal information must be transparent. The decision here demonstrates that a lack of transparency can lead to enforcement action being taken by the ACCC. Accordingly, the Privacy Act applies to your business or an agreement in relation to which you have obligations arising from the Privacy Act, we suggest that all consumer information be presented so that it is accurate and clear.

If you have any questions about any of the information in the above blog, please do not hesitate to contact a highly skilled member of Coleman Greig’s Intellectual Property Team, who would be more than happy to assist you.

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