Federal Court rules that Google breached Australian Consumer Law by tracking users who chose to have “location” history set to “off”

Google and the ACCC aren’t really good mates right now, after all the drama of the Media Code earlier in the year, the hits just keep on coming with the Federal Court of Australia ruling in the ACCC’s favour against Google over the location tracking of users of Android smartphones.

The Australian Competition and Consumer Commission (ACCC) has the job of protecting consumer rights in Australia, and in this case concerns were raised, and then this case filed over the lack of clarity around just what Google could be tracking despite what users choose as their location settings.

At the centre of the case are the settings chosen when a user sets up a brand new Android phone.

Google Tracking your location

The settings central to the ACCC’s case were “Web & App Activity” and “Location History”.

In the instance where users turned off Location history, they were likely unaware that the Web usage and App usage they undertook on the same device could in fact include their Location.

Justice Thawley ruled that the ACCC had established breaches or contraventions of several sections of the Australian Consumer Law, and that the two (ACCC & Google) should now agree to the orders that reflect that – thus, the ACCC can impose fines on Google for these breaches.

If the two can’t agree, it will return to the court for a ruling.

In terms of Dollars, this refers to actions back in 2017-2019 which is the older set of fines, looking at $1.1million per breach.

Now some might argue the breach occurred per device, but in fact the ACCC will likely look to the specifics of each breach, which would put the fines at at least $3million.

Perhaps most alarming from the case was the revelation that Google held a meeting, internally referred to as the “Oh Shit” meeting, after the publication of a story titled “Google Tracks your movements, like it or not” by the Associated Press in 2018.

The article outlined that even after a user had “paused” their location history setting, your phone could and could still store your location data even if your privacy settings prevent them from doing so.

Essentially, with Location History off, Google apps were still automatically store timestamped location data without asking.

To stop that, users needed to turn off “Web and App Activity” – thus the confusion.

Google then worked internally on a document called “Making Location History simple”

One Google Software Engineer said “I agree with the article. Location off should mean location off; not except for this case or that case”

Users flocked to turn off the setting when it became known

Google’s own internal documents showed that there was at least a 500% increase in the number of users disabling Location History and Web & App Activity after this became public.

Google’s Australian Success

While the company’s success globally and here in Australia is measured by its powerhouse search engine, the Google device division has been making “Pixel” smartphones for many years, in Australia, the sales have been somewhat disappointing – struggling to rank on the top smartphone charts.

Perhaps surprisingly, the Federal Court case brought by the ACCC revealed a large device sales number for Australia.

Over three financial years (2017-2019) “around 280,000 Pixels were sold in Australia”

Don’t know about you – but that’s much higher than I thought!

No word yet from Google or the ACCC about next steps, but expect the resolution to take some time, unless Google just wants to wipe its hand of the whole situation real quick and pay up fast.