How much could misleading people about their personal information cost? Apparently, $60 million.

Key takeaways for all businesses collecting personal information

•  Being misleading about how you are collecting and using someone’s personal information could be costly conduct.
• Whatever the size and nature of your business, review your user notifications, privacy collection notices and consents to check that they meet all the relevant requirements under the Australian Consumer Law and Privacy Act.
• Ensure that your business and its people are appropriately aware of and trained to comply with their key obligations in this space.

Being misleading could be costly

In a significant decision earlier this month, the Federal Court of Australia has imposed a penalty of $60 million on Google after the Australian Competition & Consumer Commission (ACCC) successfully claimed that Google had made misleading representations to consumers about the collection and use of their personal location data on Android phones between January 2017 and December 2018.  

As you can see, the penalty in this case is a substantial one. The Court has made it clear to digital platforms and other businesses (whether large or small) that they must not mislead consumers about how their data is being collected and used.The Court also required Google to ensure its policies included a commitment to train staff about the Australian Consumer Law in addition to paying an amount for the ACCC’s costs.

What happened?

‍In Short:
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•  Google was indicating to certain Android users that the setting titled “Location History” was the only Google account setting that affected whether Google collected, kept and used personally identifiable data about their location
• However, Google was in fact keeping thelocation data collected through its “Web & App Activity” setting and retaining that data to target advertising to some users, even if those users had the “Location History” setting turned off.

ACCC's views and intentions

Since the decision, the ACCC’s Chair has also made very strong statements targeted to such platforms and business. It shows a clear intention on the ACCC’s part to take very seriously the protection of consumers’ rights and their individual choices in the context of privacy.
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•  “Companies need to be transparent about the types of data that they are collecting and how the data is collected and may be used, so that consumers can make informed decisions about who they share that data with.”
• “Personal location data is sensitive and important to some consumers, and some of the users who saw the representations may have made different choices about the collection, storage and use of their location data if the misleading representations had not been made by Google.

We can help you

if you have questions, or would like more information about how these recent developments could affect your business, please call 1800 867 113 or to organise a confidential discussion with our data protection and privacy law specialists at a time that suits you, click here.

About the Author

Justin Fung is a lawyer and the Head of Commercial and Corporate in our Avant Law team. Justin has over 15 years’ experience advising in commercial, corporate, risk, compliance, governance, regulatory enforcement and dispute resolution and advises clients in the private and public sectors.

He was previously General Counsel of a national allied health group of companies and held Group and Divisional Head of Legal roles in a major ASX-listed health company, whose operations covered medical and dental centres, allied health, pathology, diagnostic imaging, assisted reproductive technologies, day surgeries and hospitals. Prior to these in-house legal roles, Justin was an Executive Counsel with the global law firm Herbert Smith Free hills where he practiced for over 10 years.

Disclaimer: The information in this article is general in nature and is current to 18 August 2022.  It does not take into account individual circumstances and is not professional legal, financial or taxation advice.  Avant Law provides legal services. It does not provide taxation or financial advisory services.