Understanding the relevance of data collection norms vis-à-vis recent court battle where ACCC has accused Google of collecting data by deception

What are the data collection norms? What is its importance? 

Each country has its own data norms, whereby any company that collects user’s personal information in their jurisdiction, has to abide by certain data norms, wherein they have to receive the consent of the users, before collecting their personal data. This is usually done in the form of a privacy policy, where the consent is obtained in the form of ‘I AGREE’ button available usually at the end of the privacy policy. This policy should be drafted in simple and understandable terms. 

In receiving this consent, the company has to explain to its user, inter-alia, the following:-  

• the scope of information being collected; 

• the kind of information being collected; 

• the manner of collection of information; 

• the manner and scope of the use of the collected information; 

• the manner and scope of sharing the collected information, etc.  

And each time the company tweaks its privacy policy or its scope, it needs to receive fresh user consent for the same. The major the change in the policy, the more the precision has be exercised in making sure that the user actually understands the changed terms, and then consent to it.  

What are the consequences of failure in adhering to these data norms?  

• At the end of the day, these privacy policy and terms of use are a contract between a company and its users. As these contracts are highly one ended (i.e. user has no say in it), therefore, if the company fails to adhere by these data norms, or implants deceptive practices in collecting consent of the users, or drafts highly unreasonably and arbitrary terms, then in case of lawsuits, the courts can impose heavy amount of penalty on the companies. 

• Additionally, there could be similar levying of penalties under relevant consumer law and competition law. 

A similar case happened recently, in Australia, where the tech giant Google has been dragged to the court, in allegations of adopting alleged deceptive practices, in obtaining user’s consent, to its privacy policy. 

The recent case of ACCC imposing penalty on Google 

Introduction 

The Australia’s consumer watchdog Australian Competition and Consumer Commission (“ACCC”) has launched a law suit against Google, alleging that the technology giant misled the account holders about its use of their personal data. The ACCC alleges the California-based tech giant company misled millions of Australian consumers in order to obtain their consent and expand the scope of the personal information that the Google collects about user’s internet activity, for targeting advertising. These allegations arise from the action taken by Google in 2016, wherein it started combining user’s personal information available in their Google accounts, with the information from the same user’s activity on non-Google websites that used the Google’s technology, formerly called DoubleClick technology, for displaying advertisements.  

Where has the lawsuit been filed? And what is the claim in the lawsuit? 

• The Australian consumer watchdog ACCC has filed the lawsuit in the Australia's Federal Court, alleging that the tech giant Google misled millions of Australians to obtain their consent, in order to gather additional personal data. 

• The ACCC claims that Google wanted the extra data concerning user’s internet activity in order to target advertisement, however it neglected on an important aspect relating to the data norms, that required it to obtain the necessary consent, for collecting any additional data from its users. 

• The consumer watchdog is claiming that the tech giant used "deception by design" in order to create user notifications about changes to their privacy policies that actively confuse people, rather than helping them.  

• It is alleging the tech giant did not adequately convey to the consumers how much of their personal data was it collecting, or how it was going to be used by the company, when it made changes to its privacy policies in June, 2016.  

What was the response of Google? 

• A Google spokesperson said that the platform strongly denies the allegations from the Australia’s watchdog ACCC and insists that the users were given an ample opportunity to not consent to the changes.  

• In his words, the spokesperson said, “We strongly disagree with their allegations and intend to defend our position.”  

Conclusion 

This is the second lawsuit filed the Australian watchdog ACCC in the Australia’s federal court. In its last lawsuit, the consumer watchdog had taken aim at the Google over allegations that its Android users did not realise a two-step process was needed to block Google from collecting location data from their devices. This case will come up for hearing on November 30, 2020.  

The watchdog might also come up with more cases against the tech giant, for violation of consumer or competition law, where real harm has been caused.