Google LLC has agreed to pay AUD 60 million to Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), after it was held that Google breached the Australian Consumer Law (ACL) regarding its collection of location data.
In October 2019, the ACCC commenced proceedings alleging that Google had engaged in misleading and deceptive conduct and made false or misleading representations to consumers between January 2017 and December 2018 in respect of the way location data was collected from users of Android mobile devices.
Two settings on the Android mobile devices were central to the ACCC’s case: “Web & App Activity” and “Location History”. When setting up a Google Account on an Android device, Web & App Activity was defaulted to “on” and Location History was defaulted to “off”. These default settings prevented Google from adding the user’s movements to their “timeline,” namely the visualisation of the user’s daily travels. However, it did not prevent Google from collecting other location markers when the user was using Google Search and Google Maps. This location data was used by Google to personalise advertisements for users. This issue is estimated to have impacted around 1.3 million Australians.
In April 2021 Australia’s Federal Court found in favour of the ACCC in respect of some, but not all, of the regulator’s claims. Several examples of misleading or deceptive conduct were upheld, as well as one count each of making a false or misleading representations and engaging in conduct that is liable to mislead the public regarding goods. On 12 August 2022, it was announced that Google will pay AUD 60 million for these breaches, after a joint submission to the court was made by ACCC and Google nominating this amount as an appropriate penalty.
This case has attracted headlines in Australia not just due to the size of the penalty but also the fact that it involves a regulator other than Australia’s privacy regulator, the Office of the Australian Information Commissioner, taking action in respect of Google’s privacy related practices. The emergence of an active ACCC which is willing to take on high profile plaintiffs on privacy issues is an interesting development for the Australian market, particularly given that changes to the Australian privacy regime are yet to be made yet following the Federal Government’s Privacy Act review and, currently, the fines which can be imposed for breach of Australian consumer laws are significantly higher than the maximum penalties payable under the Privacy Act.
