Andrew Lacey
Managing Principal
In June 2016, Google LLC (Google) introduced a notification system where consumers were instructed that Google had added some “optional features”. If consumers clicked “I agree”, Google would be allowed to combine their personal information obtained through their accounts with Google, with their activity on sites which use Google’s technology to display advertisements. It linked tracking data across platforms for the purpose of improving Google’s advertising business, from which google derives a significant portion of its revenue.
The Australian Competition and Consumer Commission (ACCC) commenced proceedings in July 2020 in the Federal Court of Australia. The ACCC alleged that Google contravened sections 18, 29 and 34 of the Australian Consumer Law (ACL) by making false or misleading representations. Specifically, the ACCC alleged that:
Google submitted that the changes were not misleading because they sought the consumer’s informed consent, through the “I agree” opt in, prior to implementing the changes. They maintained that the change to Google’s privacy policy to expand the scope of its use and collection of personal data, did not reduce consumer’s privacy rights.
The Federal Court of Australia held that Google did not mislead consumers when it introduced the notification system creating an opt in to the amended privacy policy. The Court found that Google had sought the informed consent of consumers to combine and use the data, which was provided by consumers clicking the “I agree” button in response to the notification.[3]
Google recognised three different classes of consumers: skipper, skimmers, and readers. The Court noted that importance of the first page of Google’s notification,[4] which informed consumers that “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”. Justice Yates was therefore satisfied that anyone who took the time to read the first page of the notification before clicking the “I agree” button, would have understood the implications of doing so.[5]
The Federal Court dismissed the ACCC’s application and ordered the ACCC to pay Google’s costs associated with defending the proceedings.
Businesses need to keep in mind the strict requirements to adequately inform consumers. This involves recognising the user experience, as Google did, and ensuring that adequate information is provided to the consumer upfront, so they are able to give informed consent when necessary.
Consumers must also take accountability when they are given sufficient notice of a change which they are being asked to consent to. The Court recognised that consumers who had taken the trouble to read the notification would reasonably been able to act in their own interests.[6]
[1] Australian Competition and Consumer Commission v Google LLC (No 2) [2022] FCA 1476 [124]-[125].
[2] Ibid [270].
[3] Ibid [274].
[4] Ibid [239].
[5] Ibid [250].
[6] Ibid [240].