Google says ACCC location data privacy claims ‘cherry-picked’

ACCC v Google: Competition regulator’s privacy claims lack context, search giant says

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A lawsuit filed by Australian Competition and Consumer Commission (ACCC) says that Google has made misleading claims about the use of location data by the Android operating system. However, Google retorted today at a Federal Court case management hearing that the ACCC is ignoring important context to the Android settings at the heart of the case.

Barrister Robert Yezerski, appearing for Google, said that his client was seeking clarity about the ACCC’s case on a number of fronts.

The ACCC late last month launched the legal action against Google. It is arguing that Google is guilty of breaching the Australian Consumer Law by making misleading claims about the collection of location data by the Android mobile OS.

The search and digital advertising giant misled Android users by not being clear that both ‘Location History’ ‘Web & App Activity’ settings in the OS needed to be disabled to prevent Google from collecting location data, an ACCC court filing claims.

“There’s an allegation that by providing a certain statement… and not [at the same time] providing certain other information, Google made a representation,” Yezerski said.

If the ACCC case is there has to have available to a user at the same point relevant information about the collection and use of location data, Google’s position is that such information is available, he said.

However, he added that it seems as if the “real case the ACCC wants to run” is that such information must be on the same screen. Google is concerned about “things slipping around” down the track, Yezerski said, and wants to know “precisely” what the ACCC thinks it should have done.

The ACCC has “read a series of statements out of context,” he said. That context is not necessarily “one thing,” he said, it’s also the “other pages, the other information” made information on devices and on the web plus what consumers “would discern form their ordinary use of the phone,” such as the Google Maps app.

Google believes that the ACCC wants to run a ”cherry-picked case” but Google’s response will need to be “broader” to add that context.

Presiding judge Justice Thawley directed Google to send by close of business tomorrow a letter to the ACCC highlighting issues it requires clarity on from the consumer watchdog. The ACCC is required to send a response by 22 November.

The judge set 13 December as a deadline for Google to respond to the ACCC’s concise statement, with an ACCC response due by 20 December. The matter has been listed for further case management on 3 February.

The key allegation raised by the ACCC in its case is that consumers would believe that when the ‘Location History’ setting in Android is switched off, Google would cease to collect their location data.

 “We allege that Google misled consumers by staying silent about the fact that another setting also had to be switched off,” ACCC chair Rod Sims argued last month when the commission announced the legal action.

The ACCC is also alleging that Google deceived consumers about how the data it collected would be used. The competition and consumer watchdog claims that Google conveyed that the location data would be collected and processed only in relation to the use of its services by a consumer.

“We consider that because of Google’s failure to disclose this use of data, consumers were and still are deprived of the opportunity to make an informed choice about whether to share their personal location data with Google,” Sims said in October.

The legal action emerged from the ACCC’s Digital Platforms Inquiry. Sims revealed in December last year that five investigations had been launched as a result of the inquiry, which focused, in particular, on the market power of Google and Facebook.

“The collection of user data by both major digital platforms [Google and Facebook] (and other digital platforms) … extends far beyond the collection of data provided or observed via a user’s interaction with the owned and operated apps and services,” the inquiry’s final report argued.

“Data collected from the user’s interaction with vast numbers of other websites and apps is combined with the data from the owned and operated platforms, and, in Google’s case, with data collected from a user’s device, where the device uses the Android mobile operating system.”

The government is yet to respond to the ACCC’s recommendations emerging from the inquiry. Among them were moves to tackle the dominance of Google’s Chrome browser and search engine as well as strengthening Australia’s privacy law regime.

“Google’s position across a range of markets, such as mobile operating systems (Android), and web browsers (Chrome), enables Google to set Google Search as a default option,” the ACCC’s report argued.

“As consumers infrequently change defaults, this has the effect of further entrenching its market power… [W[hile the data collected by Google increases its market power, the market power held by Google and its presence across related markets can also enable it to collect greater quantities and qualities of data.”

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