Federal Court dismisses privacy case against Google

ACCC bought the case to The Federal Court, accusing Google of misleading Australian consumers when it published an on-screen notification to Australian users inadequately informing them of privacy policy changes. The Federal Court dismissed the case on the premise that Google sought consent of account holders to implement the changes and only implemented the steps with their informed consent.

The case was instituted in July 2020 when consumer watchdog ACCC kicked off the proceedings. “Google’s conduct came to our attention as a result of our work on the Digital Platforms Inquiry,” ACCC Acting Chair Delia Rickard said. “We took this case because we were concerned that Google was not adequately providing consumers with clear and transparent information about how it collects and uses consumer data.”

In mid 2016, Google account holders began receiving a notification informing them of “optional features” about how their data from Google services would be used. The updated Privacy Policy would mean this data could include browsing data from Chrome and activity from websites and apps that partner with Google, including those that show ads from Google. This update would mean data previously kept separate from users’ Google accounts and not linked to an individual user, was now linked to users’ names and other identifying information.

While this update was presented to account holders with additional links and further information, the ACCC felt that Google had “significantly increased the scope of information it collected about consumers on a personally identifiable basis” without their consent.

Justice David Yates dismissed the case and ordered the ACCC to pay Google’s legal costs. “Account holders were given the choice as to whether they should give consent,” Yates presented in his judgement on Friday. “Google’s appreciation that its account holders comprised ‘Skippers, Skimmers and Readers’ explains why the notification was presented in a way that provided links to enable account holders to obtain more information in relation to Google’s proposal, should that have been their desire.”

The ACCC’s case against Google came off the back of successful proceedings against the company regarding personal location data collection.  The Federal Court found that Google misled consumers about personal location data collected through Android mobile devices between January 2017 and December 2018, in a world-first enforcement action brought by the ACCC.

While this most recent case was dismissed, it brings to the fore discussions around data privacy and the education of consent. According to ACS, who covered the recent court proceedings in detail, the ACCC’s expert witness was a behavioural psychologist who claimed people “expedite the information acquisition process” and generally just accept any terms and conditions thrust upon them when using a digital service.“It is likely that users agreed to Google turning on new functionalities to improve their experience and that they did not realise that by agreeing, they were giving their consent to the change intended by Google, which concerned their privacy,” the ACCC’s expert said.

Google has recently announced that it would be phasing out and eventually banning third party cookies by the end of 2023. Cookies are used to track your online behaviour, leaving small files on your device when you access a certain page or website. These are used by marketers and developers to tailor your online experience from ads to recommendations. Third-party cookies track users across multiple websites and are typically served by marketers rather than the advertiser themselves.
Google is set to phase these out next year, coinciding with the release of its own product, Privacy Sandbox. Still in development, this product has been slowly implemented through testing and is set to roll out in beta form across Android 13 mobiles in January next year. Privacy Sandbox combines a variety of existing API technologies, working as both a classifier model that infers user interests from app usage and informs advertisers accordingly, and a collector of information about which ads performed well on a given device, while offering publishers the option to designate target audiences based on interests.

This in house replacement for third party cookies has been criticised by many privacy advocates.  Privacy-focused search engine DuckDuckGo criticised Privacy Sandbox with product director, Peter Dolanjski stating “While some suggest that Topics [one of the API systems of Privacy Sandbox]  is a less invasive way of ad targeting, we don’t agree. Why not? Fundamentally it’s because, by default, Google Chrome will still be automatically surveilling your online activity and sharing information about you with advertisers and other parties so they can behaviorally target you without your consent.” He notes that Google’s new method of ad re-targeting further violates privacy by relying on a personal identifier about users, directly baked in Google’s Chrome browser, instead of traditional ad re-targetting which occurs through third-party cookies.

The e-commerce landscape is changing. With a Power Retail Switched On membership, you get access to current e-commerce revenue and forecasting, traffic levels, average conversion rate, payment preferences and more!