In the recent ACCC vs Google, the Federal court has finally awarded the decision in favor of the ACCC and imposed a fine of Australian dollars 1.1 million per contravention. The case was regarding Google’s misleading Android users on how to disable personal location tracking.
ACCC stands for The Australian Competition and Consumer Commission which believes that a contravention would occur each time a person is misled which means that the total fine would result in millions of dollars. It also urges the court to issue a heavy fine so that no other organization would behave similarly.
How Was This Discovered?
The ACCC explained that this case was related to 2018 statements made by Google on how and why Google obtained personal location data. Google has led the Android users into thinking that by turning off the “Location History”, the user’s location was not tracked by Google. But in addition to Location History, there was another Google feature on Android that collected this same information and it was the “Web & App Activity”. To simplify, a user must turn off both Location History and Web & App Activity to prevent his/her location from being tracked or recorded. But Google never informed the users about the second factor and let the users believe that turning the Location History off was enough.
Another accusation put on by the ACCC was that Google’s Privacy statement misled people into thinking that any personal data collected by Google was for the benefit of the individual user like providing recommended searches and suggestions based on their history. However, the personal data collected was used to analyse the market demands and trends and used by Google for market analysis and research.
However, the Honourable Court dismissed the second accusation stating that people might have guessed that the reason Google was offering its services was for free was that it did have a commercial angle with the collected data as well.
What is the Court’s decision on the Penalty?
The final amount of the penalty and the enforcement order will be declared later. The main purpose of this penalty is to prevent organizations from adopting dishonest behaviour where they hide information from the users. The penalty also has to be set on the higher side as small penalties have often been thought of as a sundry cost by many organizations who continue to mislead users. In the recent ACCC vs Volkswagen case, the Federal court of Australia imposed a huge fine of $96 million for a misleading fact on Australian diesel emissions standards.
In the case of Google, it is established by the Federal Court that the information provided by Google to its users regarding the local data tracking was completely misleading. However, the court also referred to the fact many people do not bother to read the privacy terms or review them before accepting them. Hence it would be wrong to state that all Android users were misled as many consumers have limited time and ability to read all the legal terms and conditions before clicking on the Accept button.
The ACCC, on the other hand, claims that it would not be possible for everyone to hire a lawyer or a data scientist to understand exactly what Google wants to collect and why. But it is quite evident that this data collected by Google was done with the intention of Profit Making. It would naturally be difficult to access the number of peoples who were misled against those who did not bother reading the terms and conditions. However, it is quite logical to assume that many users would have thought that by turning off the Location History option, the data will no longer be collected by Google.
But reports have proved that after this matter was highlighted, the number of users that turned off Web & App Activity, increased by 500%.
Did Google purposefully leave this loophole?
It is difficult to get an honest answer to the above question. However, some leaked reports from Google tell us that an urgent internal meeting was called out which was nicknamed the “Oh Shit” meeting. It has been reported that many of the Google employees did not know of this issue before this meeting. However, there was a flaw in the Google design and architecture which could not have occurred by chance without anyone knowing about it.
When Google informed its users about the Location History module and the fact that what it does, it also informed the users on how to turn this option off. This type of app design is known as “Choice Architecture” which allows the user to decide on whether he/she allows Google to collect data or not. But if there is a backdoor to this design that makes the Location History act as a decoy switch because the main switch lies within Web & App Activity, then this is a loophole with purpose and intent. It does not matter what and when the Google employees knew about this, but the fact is that a few did know when this design was implemented and hence a huge penalty is definitely in order.