Australian Competition and Consumer Commission v Google LLC (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 16 April 2021
• Neutral Citation: [2021] FCA 367
• Date: 16 April 2021

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Google LLC (No 2) [2021] FCA 367

File number:	NSD 1760 of 2019
Judgment of:	THAWLEY J
Date of judgment:	16 April 2021
Catchwords:	CONSUMER LAW – alleged contraventions of ss 18, 29 and 33 or 34 of the Australian Consumer Law (ACL) – whether particular users of mobile devices were misled or likely to be misled into thinking that with the Location History setting “off” and Web & App Activity setting “on” Google LLC would not obtain, retain and use personal data about a user’s location – consideration of users setting-up a Google Account, users wanting to turn Location History “off” and users considering whether to turn Web & App Activity “off” – whether Google Australia Pty Ltd passed on the representations made by Google LLC – alleged contraventions of ss 18, 29 and 34 of the ACL by Google LLC and Google Australia Pty Ltd partially made out
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law, ss 18, 29, 33, 34, 140, 224 Evidence Act 1995 (Cth) ss 140, 191 Trade Practices Act 1974 (Cth) ss 52, 53, 55A, 82 Consumer Affairs Act 1972 (Vic) Federal Trade Commission Act 1914 (US) s 5 Merchandise Marks Act 1887 (UK) Trade Descriptions Act 1968 (UK)
Cases cited:	Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 Australian Competition and Consumer Commission v Australian Private Networks Pty Ltd [2019] FCA 384 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v HJ Heinz Co Australia Ltd (2018) 363 ALR 136 Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (2019) 371 ALR 396 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 381 ALR 507 Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 Beckwith v The Queen (1976) 135 CLR 569 Briginshaw v Briginshaw (1938) 60 CLR 336 Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 Comité Interprofessionnel du Vin de Champagne v Powell (2015) 330 ALR 67 Commissioner of Taxation v Hart (2004) 217 CLR 216 Given v Pryor (1979) 24 ALR 442 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 Lee v Evans (1964) 112 CLR 276 Monroe Topples & Associates Pty Ltd v Institute of Chartered Accountants [2001] FCA 1056 National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Patrick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2019) 286 IR 52 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 Shahid v Australasian College of Dermatologists (2008) 168 FCR 46 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Trade Practices Commission v J & R Enterprises (1991) 99 ALR 325 Trivago NV v Australian Competition and Consumer Commissioner (2020) 384 ALR 496 ; Miller RV, Miller’s Australian Competition and Consumer Law Annotated (43rd ed, Thomson Reuters, 2021) Trade Practices Act Review Committee, Report to the Minister for Business and Consumer Affairs (Australian Government Publishing Service, Canberra, 1976)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Economic Regulator, Competition and Access
Number of paragraphs:	341
Date of hearing:	30 November to 4 December 2020
Counsel for the Applicant:	K Richardson SC with A d’Arville
Solicitor for the Applicant:	Norton Rose Fulbright Australia
Counsel for the Respondents:	P Brereton SC with R Yezerski and S Hartford Davis
Solicitor for the Respondents:	Corrs Chambers Westgarth

ORDERS

		NSD 1760 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	GOOGLE LLC First Respondent ; GOOGLE AUSTRALIA PTY LTD Second Respondent

order made by:	THAWLEY J
DATE OF ORDER:	16 APRIL 2021

THE COURT ORDERS THAT:

1. The parties confer with a view to providing within 14 days agreed orders reflecting the conclusions reached by the Court and appropriate further steps.

THE COURT NOTES THAT:

1. Limited parts of these reasons for judgment have been redacted to give effect to non-publication orders made on 4 and 10 December 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THAWLEY J:

OVERVIEW	[1]
FACTS	[19]
Overview of Google’s services in Australia	[20]
Google Account settings	[28]
Collection, storage and use of personal data about a user’s location	[33]
Device-level Location Setting	[39]
Screenshot Bundle	[45]
Set-up process on Android OS	[46]
THE EVIDENCE	[50]
The expert evidence	[50]
The lay evidence	[65]
LEGAL PRINCIPLES	[77]
Section 18 of the ACL	[77]
General principles	[78]
Principles where conduct directed to a class of persons	[87]
Section 29(1)(g) of the ACL	[99]
Sections 33 and 34 of the...