Google ‘partially’ misled consumers over collecting location data, Australian court finds

Google has been found to have “partially” misled Australian consumers about collecting their location data, according to a federal court ruling handed down on Friday.

The court found that Google continued to collect “Location History” and “Web & App Activity” on some Android and Pixel phones, even for customers who ticked “No” or “Do not collect” on their settings.

The action was brought by the consumer rights watchdog, the Australian Competition and Consumer Commission, which alleged that Google breached the consumer law and misled consumers.

If a customer said no to “Location History”, but left “Web & App Activity” switched on, Google continued to collect location data, the ACCC said.

In a judgment published on Friday, Justice Thomas Thawley said this was “partially” misleading.

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The chair of the ACCC, Rod Sims, said it was a “world-first” ruling on location data issues and big tech.

“It is also the first result we have had of a series of cases in relation to digital platforms, and so we are very happy to have come out with a very positive court result,” he said.

Thawley said that some consumers would have been misled, and reasonably believed this data would not be collected, and others would not have.

The multinational tech company was found to have breached sections 18, 29(1)(g) and 34 of the consumer law.

Thawley said that users “acting reasonably” would not have thought that saying yes to “Web and App Activity” tracking would also give permission to use “location data”.

This was due to “the absence of any specific reference to location” in the webform, he said.

“The ACCC submitted that the first representation was misleading because if the Web & App Activity setting was turned ‘on’, Google continued to collect and store such data,” Thawley said. “I accept this submission.

“Google’s conduct would not have misled all reasonable users in the classes identified; but Google’s conduct misled or was likely to mislead some reasonable users within the particular classes identified.

“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 contravention.”

Sims told reporters in Sydney that Google had grown into a “trillion-dollar company” by “collecting as much data as it possibly can” and selling it to advertisers.

“We think today’s result is a very clear message to the digital platforms that they have to be upfront with consumers about what is actually happening with [their] data, how it is being used, and how consumers can protect their data,” he said.

A spokesman for Google said it “disagreed” with the judge’s findings and was considering an 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,” he said.

Peter Lewis, from the thinktank the Australia Institute, said that research had shown most people did not understand Google’s complex data laws.

“The reality is most people have little to no idea on how much of their data is being used by Google and online platforms,” he said.

“Australia Institute research shows that you need a university education and that it takes an average of 74 minutes to read most terms and conditions.

“One would think selecting ‘no’ or ‘do not collect’ in a phone’s location history would stop the collection of data. But it just highlights the complexity of Big Tech terms & conditions, where in this case, data was still being collected due to a setting being switched on in another part of the phone’s settings.”