Australian Competition and Consumer Commission v Google LLC (No 4) [2022] FCA 942

Australian Competition and Consumer Commission v Google LLC (No 4) [2022] FCA 942

The agreed total penalty of $60 million is an appropriate penalty, reflecting three distinct courses of conduct by Google LLC in contravention of ss 18, 29(1)(g), and 34 of the ACL, taking into account the large estimated number of consumers affected, the seriousness of misleading location data representations, the absence of deliberate or senior management involvement, remedial action, Google's size and revenue, and the overall objective of deterrence. The penalties are apportioned to each course of conduct and balanced to avoid oppression while serving general and specific deterrence.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Google LLC; Second Respondent: Google Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
12 August 2022
Procedural Posture
Civil Penalty Proceeding / Penalty Determination and Final Orders
Outcome
Declarations made, penalty imposed, compliance orders agreed, partial costs awarded, and proceedings otherwise dismissed.
Legal Topics
Misleading or Deceptive Conduct, Pecuniary Penalties, False or Misleading Representations, Compliance Measures
Consumer Law Competition Law Misleading or Deceptive Conduct Pecuniary Penalties False or Misleading Representations Compliance Measures

Case Brief

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Parties

Australian Competition and Consumer Commission

Applicant

Google LLC

First Respondent

Google Australia Pty Ltd

Second Respondent

Procedural Posture

Civil Penalty Proceeding / Penalty Determination and Final Orders

Legal Issues

  1. 1 Whether Google LLC and Google Australia Pty Ltd contravened ss 18, 29(1)(g), and 34 of the Australian Consumer Law by making misleading representations to Australian users regarding location data collection and use
  2. 2 Whether the agreed penalty of $60 million was appropriate given the scope, extent, and seriousness of the contraventions
  3. 3 Application of the 'course of conduct' and 'totality' principles in determining appropriate penalties for multiple contraventions

Ratio Decidendi

The agreed total penalty of $60 million is an appropriate penalty, reflecting three distinct courses of conduct by Google LLC in contravention of ss 18, 29(1)(g), and 34 of the ACL, taking into account the large estimated number of consumers affected, the seriousness of misleading location data representations, the absence of deliberate or senior management involvement, remedial action, Google's size and revenue, and the overall objective of deterrence. The penalties are apportioned to each course of conduct and balanced to avoid oppression while serving general and specific deterrence.

Court Disposition

Declarations made, penalty imposed, compliance orders agreed, partial costs awarded, and proceedings otherwise dismissed.

Orders

  • Google LLC to pay $10 million for Scenario 1 Contraventions (Setup Contraventions)
  • Google LLC to pay $10 million for Scenario 2 Contraventions (LH Contraventions)