In the first public enforcement outcome arising out of the ACCC’s Digital Platforms Inquiry, Google has been fined $40 million+ in Australia over Android settings it had applied five years ago which were found to have misled consumers between January 2017 and December 2018 about its location data collection practices.

As noted in a press release published on Friday by the Australian Competition and Consumer Commission, the Court found that Google had breached Australia’s Consumer Law in April 2021 by telling Android users that the “Location History” setting was the only Google account setting that collected data about their location, when in fact it was collected by another setting called ‘Web & App Activity’, which was turned on by default. This practice, seen in a number of other usability rabbit holes found in Google’s user journey, is known as a nested dark pattern.

The regulator estimates around 1.3 million users in Australia may have viewed a screen found by the Court to have breached the Consumer Law. ACCC chair, Gina Cass-Gottlieb, explained: “Google, one of the world’s largest companies, was able to keep the location data collected through the ‘Web & App Activity’ setting and that retained data could be used by Google to target ads to some consumers, even if those consumers had the ‘Location History’ setting turned off.”

These users, she added, “may have made different choices about the collection, storage and use of their location data if the misleading representations had not been made by Google.”

She continued: “This significant penalty imposed by the Court today sends a strong message to digital platforms and other businesses, large and small, that they must not mislead consumers about how their data is being collected and used.”

The Court has further ordered Google to ensure its policies included a commitment to compliance, and required it to train certain staff about the country’s Consumer Law, as well as to pay a preliminary contribution to the ACCC’s total costs.

Ms. Cass-Gottlieb reiterated that “companies need to be transparent about the types of data that they are collecting and how the data is collected and may be used, so that consumers can make informed decisions about who they share that data with.” 

The company has been undergoing a similar investigation in the European Union since February 2020 in relation to complaints filed in November 2018 about its ambiguous location tracking. If found guilty, the company could face heftier fines – up to 4% of its global annual turnover – under the bloc’s General Data Protection Regulation.

Earlier this summer, European consumer rights groups also filed a new series of complaints accusing the advertising giant of deceptive design around the account creation process that steers users into agreeing to invasive data processing patterns.