Google settings: Australia privacy win could see more litigation for NZ courts – lawyer

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Kyiv, Ukraine - January 24, 2018: Woman using Google app on  Apple iPhone 8 plus at home. Google it is the most-used search engine on the World Wide Web,

An Australian Watch Dog victory over data collection could lead to similar litigation in New Zealand becoming more common.

The judge did not consider consumer acceptance of Google’s terms and conditions to be the alpha and omega, says a lawyer.
Photo: 123RF

Australian courts recently found that Google’s privacy settings misled consumers as to whether their location data was stored on Android devices because, while the information was included in the terms and conditions, it was not clear.

Richard Massey, senior associate with Bell Gully law firm, said the case was of interest to New Zealand regulators.

“Past experience has shown that the New Zealand Trade Commission has been fairly closely monitoring the activities of the Australian Competition and Consumers Commission (ACCC) and it will certainly have been interested in this case.

“The fact that the ACCC has achieved a favorable outcome is likely to encourage the Commission to pursue similar litigation.”

The ACCC brought the case, which focused on two specific settings of the Android devices: “Web and App Activity” and “Location History”.

In the default settings, the location history was shown as disabled. However, Google could still get location data through the web and app activity setting when it was enabled.

The ACCC claim was that a reasonable consumer would assume that turning off location history would protect their location data, even though the Privacy and Terms of Use section stated that data could still be collected.

Massey said it was interesting that the judge did not consider a consumer’s acceptance of the terms and conditions to be the be-all and end-all.

“Traditionally, the law has stated that once you’ve specifically agreed to the terms and conditions, you are on the hook for what you signed up for, whether you read them or not.

“What is quite noticeable about this judgment is simply that the terms were dropped on the basis that customers would have read it very quickly and might not have understood the full implications.”

He said it was also a turning point to view this case as a consumer protection claim rather than just privacy.

“This is a significant shift as the tools available to regulators for general consumer law are far more extensive and burdensome than those available to the DPO in either country.

“I think it is, one of the reasons this ruling is seen as quite significant is that it is a kind of transfer of responsibility from traditional data protection mechanisms to more comprehensive consumer law.”

He said the case should serve as a warning to all organizations and companies that were collecting information digitally.

“The bigger regulatory enforcement consequences are in fact the penalties imposed under the Fair Trading Act, New Zealand’s premier consumer law law, which are significantly higher than the consequences that would exist under the Privacy Act.

“If a company commits a crime under the Fair Trading Act, the maximum fine a company can pay is $ 600,000.

Google is considering appealing the decision.