In June 2016, Google account holders received a notification telling them the company had added some “optional features” about how their data from Google services would be used.
“When you use Google services like Search and YouTube, you generate data – things like what you’ve searched for and videos you’ve watched,” the first page of the notification read.
The Australian Competition and Consumer Commission (ACCC) learned of this notification during its Digital Platforms Inquiry and subsequently launched a suit in the Federal Court claiming Google had “significantly increased the scope of information it collected about consumers on a personally identifiable basis” without their consent.
Federal Court Justice David Yates handed down his judgement in the matter last week, saying he was “not satisfied” that Google had breached Australian Consumer Law as the ACCC alleged.
Justice Yates pointed to the first page of Google’s notification to users as being “critical” to the case.
If anyone who read that first part of the notification was “mislead or deceived by Google omitting information” then Google would have been in breach of consumer law.
The ACCC’s expert witness was a behavioural psychologist whose opinion was that people tend to “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.
Yates did not look favourably upon the testimony of ACCC’s behavioural psychologist, calling their evidence “hypotheses, conjecture, or predictions”.
Yates also did not find Google’s deliberately designed ‘consent bump’ – a technique whereby it puts the minimum most necessary information to get a policy change past users at the top of a notification – to be evidence of Google “acting in an untoward way”.
In fact, the idea that people probably don’t fully read policy updates, even if they are skimming or skipping through them, didn’t come into Yates’s considerations.
“The commission’s case must focus on those who, at least, took the trouble to read what Google was telling them on page 1 of the notification,” he said.
“Account holders who did not take that trouble would not have been acting reasonably in their own interests.”
Justice Yates went on to say that the first page of Google’s notification told users “if they agreed to the proposed changes, the data relating to their activity on websites and apps that partner with Google could be combined or associated with the data already stored in their Google Accounts”.
He was satisfied anyone who actually bothered to read the policy update before clicking the big blue ‘I accept’ button would have understood this.
“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,” ACCC Acting Chair Delia Rickard said in a statement.
“We will now carefully consider the judgement.”
The ACCC was ordered to pay Google’s costs.