Court vacates ACCC v Google location data handling case management hearing

The parties are to sort out agreed terms and revisit the case management process in November.

The Australian Competition and Consumer Commission (ACCC) in October announced it was taking Google and its Australian outpost to court over allegations that the search giant misled consumers about the location data collected on Android devices.

The ACCC alleged that, during 2017 and 2018, Google did not inform Australians that they needed to have the location history setting within Android, as well as the web & app activity setting, disabled to prevent Google storing location data.

The case management hearing was meant to be heard on Friday before Justice Thomas Thawley at the Federal Court of Australia, but in accordance with orders made by the judge, the hearing has been vacated.

The case management hearing, scheduled for 3 November 2020, has also been vacated.

The court has ordered that by August 3, the parties file a statement of agreed facts in respect of the factual matters about which the parties are in agreement; and have a final document indicating the factual topics about which the parties are in dispute, filed by August 7.

Following the filing of a handful of other documentation and evidence, the proceeding will be referred to mediation in the week commencing 2 November 2020. A case management hearing is currently scheduled for 9 November 2020.

In its concise statement [PDF], filed in October last year, the watchdog had argued that consumers were led to believe that Location History was the only setting that needed to be switched off.

"We allege that Google misled consumers by staying silent about the fact that another setting also had to be switched off," ACCC chair Rod Sims said at the time.

"Many consumers make a conscious decision to turn off settings to stop the collection of their location data, but we allege that Google's conduct may have prevented consumers from making that choice."

The ACCC said Google made misleading or deceptive conduct and false or misleading representations, such as that when users had Location History turned off and the Web & App Activity on, Google still obtained and retained personal data about the user's location and that Google used that personal data for one or more of Google's purposes.

According to the watchdog's claim, Google's conduct "caused users to understand that personal data about their location was not being obtained, retained, or used by Google, when, in fact, personal data in relation to users' locations was being obtained and retained by Google, and used by Google for purposes other than the users' use of Google services".

"If users had been able to make an informed choice they may have taken steps to stop Google obtaining and retaining the personal data in relation to their location," the ACCC wrote.

Google told the Federal Court in November that such claims made by the ACCC are "out of context" and do not reflect how Android devices handle location data.

The search giant's legal counsel said that information regarding the collection and use of location data is available to users, and that the ACCC's "real case" is that such information must all be on the same screen at the same time. 

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