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Google deceived some Australian mobile users about collection of location data

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Google deceived some Australian mobile users about collection of location data, court finds

By Jamie McKinnell

Google could face fines in the "many millions" after the Federal Court found the company misled some Australian mobile and tablet users about how it collects location data.

Key points:

  • The court found Google misled a specific group of Android customers
  • Google says it is exploring a possible legal appeal
  • The ACCC says this case is the first in the world on location data collection

The tech giant was taken to court by the Australian Competition and Consumer Commission (ACCC) over on-screen representations it made on Android devices in 2017 and 2018.

The case centred on two specific Google settings that affected location data collection; 'location history' and 'web & app activity'.

The consumer watchdog claimed Google misled consumers because if 'location history' was disabled but the latter setting was left on, the company continued to collect and use location data.

The result represents a partial victory for the ACCC, because the watchdog identified specific user scenarios which constituted contraventions of consumer law.

"I am satisfied that Google's conduct assessed as a whole was misleading or deceptive of, or likely to mislead or deceive, ordinary members within the class identified by the ACCC, acting reasonably," Justice Thomas Thawley said in his judgment.

"I conclude that Google's conduct assessed as a whole conveyed a representation that having 'web & app activity' turned 'on' would not allow Google to obtain, retain and use personal data about the user's location."

The penalty will be decided at a later date and Google could face a penalty of up to $1.1 million per breach.

The court will need to decide what it considers a breach and how many occurred but ACCC chair Rod Simms said they will be seeking a penalty in the "many millions".

Mr Simms said he was "absolutely delighted" with the result and said it was the first ruling in the world in relation to location data issues.

It sent a "very clear message” to digital platforms about the need to be up front with consumers, he added.

“Data issues are only going to be more important. It's crucial we get some court rulings in relation to what platforms can and can't do," he said.

A Google spokesperson said in a statement the company is "currently reviewing options, including a possible appeal".

"We provide robust controls for location data and are always looking to do more - for example we recently introduced auto delete options for location history, making it even easier to control your data," the spokesperson said.

Google held 'oh shit' meeting

The court heard from experts with expertise in behavioural economics to understand how users approached the task of navigating various screens.

That involved a "cost-benefit analysis" and was subject to "behavioural biases", the court was told.

The experts engaged on behalf of the ACCC and Google agreed there was a "technological trade-off" between privacy and service quality.

The case was run by reference to "classes" of users in three different scenarios, also confined to particular time periods.

These included users who set up a Google account for the first time, others who altered their location settings after the initial set up, and those who later considered disabling the 'web & app' setting.

Justice Thawley found Google's conduct would have misled some but not all reasonable users in the specified categories.

"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."

After an Associated Press (AP) media article covered the location data and settings issue in August 2018, Google urgently held what was internally referred to as the "oh shit" meeting, the court heard.

A Google director then circulated documents about what work was being carried out to reduce user confusion.

The AP article led to a 500 per cent increase in users disabling both settings, according to internal Google documents.


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