The Australian Competition and Consumer Commission has had a significantwinagainst Google.
The Federal Court found Google misled some Android users about how to disablepersonal location tracking.
Will this decision actually change the behavior of the big tech companies?
The answer will depend on the size of the penalty awarded in response to the misconduct.
There is a contravention each time a reasonable person in the relevant class is misled.
So the total award could, in theory, amount to many millions of dollars.
But the actual penalty will depend on how the court characterizes the misconduct.
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Read more:The ACCC is suing Google for misleading millions.
How much should Google pay?
The penalty and other enforcement orders against Google will be made at alater date.
If penalties are too low they may be treated by wrongdoing firms as merely a cost of doing business.
This has occurred even where the regulator has not sought higher penalties.
These might seem to reduce the seriousness or at least the moral culpability of the offence.
But we argue they should not unduly cap the penalty awarded.
Googles conduct may not appear as egregious and deliberately deceptive as the Volkswagen case.
Only some consumers?
The Federal Court acknowledged not all consumers would be misled by Googles representations.
This might sound like the court was condoning consumers carelessness.
In fact the court made use of insights from economists about thebehavioural biasesof consumers in making decisions.
The number of consumers misled by Googles representations will be difficult to assess.
An urgent meeting was held, referred to internally as the Oh Shit meeting.
But that is not the point.
It is thecompanyfault that is the question.
Googles corporate mindset is manifested or revealed in the systems it designs and puts in place.
This kind of system design is sometimes referred to as choice architecture.
This privacy eroding system arose via the design of the choice architecture.
It therefore warrants a serious penalty.
