ACCC alleges Google misled consumers about expanded use of personal data
accc.gov.au
accc.gov.au
If you buy a physical good and it doesn't work towards its described specifications, you deserve a refund.
If you buy a digital good and you meet the system requirements but it doesn't work, you deserve a refund.
0: https://bgr.com/2016/08/29/no-mans-sky-refund-steam-pc-ps4-s...
However this has been a problem with some digital marketplaces as they entered the Australian market. For tax reasons many products were sold via a Irish or Singaporean subsidiary and thus tried to avoid taxation on the sales (even some were selling in $AU from these offshore locations). As these loopholes were closed many companies essentially accepted they had Australian presences (mostly due to the changes around tax). However Australia has some fairly strong consumer protections (at least on paper), fairly broad statutes (terms like "reasonable durability" and "fit for purpose") and a fairly active consumer rights defender (ACCC) and many organisations have avoided Furthermore consumer rights cannot be removed via EULA agreements and such. Many organisations didn't change their systems for Australia as they were "mostly" compliant, and considered that digital goods were "New" and "Different" from the rules that affected physical products and retail operators.
So under Australian Law.... yes. Gamestop (or more likely EB games in Australia) is liable for the refund. However they can then turn to their suppliers and sue them for breach of contract for supplying defective products. It is reasonable Future stability doesn't come into it, as the product was sold misleadingly. EB Games has already been taken to task over this for Fallout 76 and trying to claim people aren't entitled to a refund.
0: https://www.accc.gov.au/media-release/eb-games-undertakes-to...
And their arrogance cost them dearly.
It was a convenient excuse for them to say "Not our problem, contact the publisher" and the publisher being all "We didn't sell it to you, Steam did".
I've tried getting refunds for clearly broken games, but Steam gave their usual b.s response.
After the ACCC win, Steam came back with a "Sorry you played it for more htan 2 hours". Which for a whole bunch of games is barely getting started.
No Mans Sky was especially evil since it would take a bit of time to leave the first planet and see that all the promised features weren't implemented.
Steam already tracks achievements and average time played for all players. They are in a very good position to provide refunds after 2 hours playtime while minimizing the risk from refund fraud.
Yes (in Australia). The responsibility for not selling faulty shit is ultimately with the retailer. Doesn't matter if it's a TV, a car, a kid's toy, or some software.
In April 2019 I contact Nintendo, as Trials Rising had just come out and I purchased it digitally. Upon first playing the game I discovered that it ran very poorly, was dropping frames frequently and causing input problems; particularly when in hand-held mode whilst playing through the tutorials and first level.
They sent me on a wild goose chase to "Nintendo Contact Center Europe" and I of course never got a refund.
After realising I was getting nowhere I caved and attempted to play some more. Fortunately, I discovered most of the game is at least playable. Not sure why the first level in particular performed so poorly. If I go back and play it now, it's still horrid performance. Overall, the game doesn't operate as I'd expect, is at least partially faulty, and probably shouldn't be for sale in its current state. I would have preferred to refund and instead buy on PC.
EDIT: I did actually report Nintendo's no refunds policy to the ACCC. However, they're very busy due to all the shotty companies, so I'm a bit doubtful it was ever looked into.
If it's as I hypothesize and they can't revoke software licenses, I think their stance is reasonable from the perspective that this could be used to acquire all the games for free. But I think they should be compelled to fix this going forward.
Or a fix?
Hinges on whether the product has a "major failure" or a (lesser) defect.
I think companies in general gets too much of a free pass when it comes to their responsibilities and too much of free reign when it comes to what they can do when they claim their rights.
For example, if I'm late with a payment for a product, the punishment is by default going to be of the "eff you, pay us"-kind, while the opposite often ends up in the "oopsie, my bad you had to wait a few months for that refund, and had to cancel the sub by fax".
I really think consumer laws in general should be improved and enforced more. Pretty happy with those in Sweden, although many (also big) brands try to sneak their way out of them.
Doesn't sound reasonable to me. The law doesn't cease to apply when a business finds compliance to be inconvenient. At least, it shouldn't.
"If it's as I hypothesise and they can't afford a loaf of bread, I think their stance is reasonable from the perspective that this could be used to starve them to death"
You can always tell if something is reasonable by changing it from a company screwing an individual into an individual screwing a company. If an individual hurts a company to survive, we normally see that is illegal quite quickly. It's only when a company hurts an individual in order to make a profit that we struggle.
The Federal Court has ordered Sony Interactive Entertainment Network Europe Limited (Sony Europe) to pay $3.5 million in penalties for making false and misleading representations on its website and in dealings with Australian consumers about their Australian Consumer Law (ACL) rights.
Sony Europe made misleading representations to four consumers who believed they had purchased faulty PlayStation games. This occurred when Sony’s customer service representatives told them over the phone Sony Europe was not required to refund the game once it had been downloaded, or if 14 days had passed since it was purchased.
“Consumer guarantee rights do not expire after a digital product has been downloaded and certainly do not disappear after 14 days or any other arbitrary date claimed by a game store or developer,” ACCC Chair Rod Sims said.
The Court also declared Sony Europe breached the ACL by telling one of the four consumers it did not have to provide a refund unless the game developer authorised it, and by telling a fifth consumer that Sony Europe could provide a refund using virtual PlayStation currency instead of money.
Unfortunately it's a slow process though.
https://www.accc.gov.au/media-release/sony-to-pay-35-million...
This is a particularly important function in cases where there is significant asymmetry in transactions, as is typical with large corporations versus many customers making small purchases.
In scenario like that, a defrauded consumer has essentially no recourse, as nobody is willing to take a minor matter to court. Even if they do, they'll face an army of lawyers that will certainly drag out the proceedings until its Just Not Worth It for the angry consumer. Class action lawsuits, the type popular in the United States, are a joke, serving only to enrich lawyers.
In Australia, the ACCC sues or directly penalises corporations on the behalf of consumers. They enforce laws related to things like warranty returns.
They have a reputation for coming down like a ton of bricks on misbehaving businesses, with eye-watering fines for even minor things like putting up an invalid "no returns" policy sign at the cash register.
As a consequence of ACCC's actions, consumer confidence is increased, so people spend more, boosting the overall business activity in Australia. Companies that behave have everything to gain and nothing to fear. Companies that try to rip off consumers are eliminated from the market, so that they can't unfairly compete with law-abiding companies by dropping prices to levels where legitimate behaviour is unsustainable.
An anecdote: A local computer parts store refused to refund my $500 for a new GPU that was faulty. I told them that this was illegal, and they're running the risk of an ACCC fine. They just laughed at me. I did nothing about it, and jumped through the hoops to return the card to the manufacturer instead. Someone else must have reported them for their behaviour, and next time I was there I noticed a prominent sign at the cash register saying that they've been fined by the ACCC $750,000 and that they had to display this sign to notify customers of their rights. For a local, small business retailer this is a brutal fine, but they're still around and now they provide instant refunds for DoA parts without argument! Plus, the look on the face of the manager who refused my warranty claim was priceless. The system works.
ACCC won't help with individual cases, though they will follow up and levy fines like you've said. So you probably did the right thing for yourself by working around them in the short term. Apart from that you need a state authority, ombudsman, or something else for direct help.
I'm sure there used to be a bunch of cheap stores around the UNSW area but they might've all closed now.
I know a Taiwanese guy though who said he had a few decent conversations with him in Chinese, so maybe it was a language thing.
If you go in to MSY with the expectation that it's a warehouse that happens to sell things and that the staff are only there to 1) fetch things for you, and 2) handle the transaction then it is extremely efficient for both the business and yourself. No bullshit small talk, you can just go in, hand over a parts list, finish your sale, and leave within 5 minutes of being served when at a normal shop you might be there for 10 or 20 minutes.
It's a shame my local MSY closed down, they had hands-down some of the best shopping experience I've ever had.
Strictly speaking not a department, rather an independent statutory authority.
Departments are under direct control of ministers, who are politicians, and the ministers can directly intervene in individual cases whenever they wish
Independent authorities such as the ACCC, the politicians have a much more hands off control - they pick the leadership, but have no say in day to day decisions
Several years ago, they refused to do anything about a dead on arrival graphics card that I returned in a week (took time for other parts to arrive). They refused to even test, saying they'd only swap it if I came back within 24 hours!
I went to the manufacturer who took their time and my build was delayed by a month.
The terms “fit for purpose” and “reasonable reliability” give the ACCC a lot of latitude. Most things come with a 12 month warranty at a minimum as a result, and the retailer has to handle it which prevents them pawning you off to the manufacturer and also means warranty replacements are brand new instead of factory refurbs.
One notable example of this is that all mobile phones carry a 2 year warranty because phone plan contracts that include them are typically that long so that’s clearly the lower bound on their reasonable life span.
When I bought a pair of jeans in the US and the crotch blew out within a month I got blank stares when I went back to the store to ask for a refund. I got a refund after much loud complaining but if they hadn’t given in my options for pursuing further are limited and vary greatly from state to state.
In Australia if I was refused a refund in a similar situation I would just have to submit a complaint against them online (via the department of Fair Trading) outlining what my issue is, what I want the retailer to do, and what they said when I asked them. Fair trading then sends them a letter that strongly encourages them to self-mediate with the customer. This almost always works. If it doesn’t then it goes to small claims court where you don’t need a lawyer at all and where the consumer wins the majority of the time.
I would be willing to bet that there are a mere handful of countries (if any) with stronger nationwide consumer protection laws than Australia.
The process you describe for getting a refund in Australia sounds completely identical to my experience dealing with my state attorney general. The concepts of Implied Warranties of Merchantability and Fitness for a Particular Purpose are also widely recognized in the US -- at the state level.
https://www.accc.gov.au/business/pricing-surcharging/payment...
The first part had Visa/MC howling (because they're normally insistent that merchants hide their fee) and the second pissed off airlines, hotels etc that loved to tack on high fixed charges as payment fees, but in both cases consumers are obviously the winners.
https://www.accc.gov.au/consumers/online-shopping/drip-prici...
But I see your point, they're not necessarily overvaluing the time they've already spent, they're trying to avoid doing it all over again.
Isn't this already the case, at least in the US? https://www.entrepreneur.com/article/307936
From memory, they tried to hide it or make it tiny to view and ACCC came back and went "You really didn't learn huh? Wanna go for round 2?" and they went back to prominently displaying it again.
With a giant red "THE ACCC HAS REQUIRED US TO LET ALL CUSTOMERS KNOW" etc etc at the top of the page
Years ago I was in a car accident where the other driver was from a different state. When my car went into the shop, I needed a rental car for a few weeks. I forwarded the bill for that to the other driver's insurance and they refused to pay it, stating that this particular driver didn't have rental car insurance on his policy, and there was no requirement that they pay it.
After pointless bouncing around I called the VA SCC and referred the case to them. Shortly after that I got a call from the insurance company and they quickly paid in full, having apparently been schooled by an SCC investigator. When you're insuring a driver who hits someone in Virginia, you are playing by Virginia rules.
That said, Facebook and other companies are just as bad.
The only problem is how consumers don't read the privacy policy and/or don't understand how valuable their data is to these companies.
Some google services like e-mail are usable with third party client apps, they don't track nor show ads.
In the included screenshots, there is clearly text that explains in pretty plain English. They left these parts out of the media release itself.
> ... With this change, this setting may also include browsing data from Chrome and activity from websites and apps that partner with Google, including those that show ads from Google.
> ...In My Account, the Ads Personalization setting currently allows Google to use data in your account to tailor ads that appear on Google products. With this change, this setting will also allow Google to use data in your account to tailor ads on websites and apps that partner with Google.
It's a lot to process in a pop-up that forces a user to make an instant decision, and the lack of an opt out without clicking through to "More Options" is shady, but it does feel like a pretty good layman's explanation of what they were going to do.
Part of informed consent in Australia is "can freely make decisions without unfair pressure or influence from others." This kind of instant decision, and the following opt-in, don't fit within that requirement.
> but it does feel like a pretty good layman's explanation of what they were going to do.
It doesn't include the detail required by Australian law.
> may also include browsing data from Chrome and activity from websites and apps that partner with Google, including those that show ads from Google.
This is not enough. You cannot simply specify any arbitrary third party.
You cannot simply say "browsing data", but have to specify what it is that you're grabbing. You have to say that you're grabbing IP ranges, headers, screen sizes, etc.
> You cannot simply say "browsing data", but have to specify what it is that you're grabbing. You have to say that you're grabbing IP ranges, headers, screen sizes, etc.
What specifically? I'm Australian and I'm not aware of any law that specifies anything like that at all.
> This is not enough. You cannot simply specify any arbitrary third party.
That's clearly not true. Amongst others, credit companies in Australia do this frequently and haven't had issues with the ACCC over it.
They don't list _arbitrary_ third parties. For example, Mastercard tells everyone "MasterCard requires members to register all Third Party Processors (TPPs) and Data Storage Entities (DSEs) with the MasterCard Registration Program system.", and then all of those are available for the public, usually via a link, within their policy.
> What specifically? I'm Australian and I'm not aware of any law that specifies anything like that at all.
Enough information that informed consent can be considered. It isn't specified, because it were, then companies would work around it. Australia makes use of a Common Law system, that which is "reasonable", rather than that which can be litigated.
Not sure if you mean Google or Mastercard doesn't list third parties?
You seem to be conflating Mastercards's PCI compliance requirements[1] with their data sales to companies like Equifax[2] and others, which is an extremely opaque trade and not disclosed.
> Enough information that informed consent can be considered. It isn't specified, because it were, then companies would work around it. Australia makes use of a Common Law system, that which is "reasonable", rather than that which can be litigated.
Exactly, and I don't believe that any court would find that they need to specify "that you're grabbing IP ranges, headers, screen sizes, etc". I'd note that the ACCC isn't making that claim either.
> that which is "reasonable", rather than that which can be litigated
Well "reasonable" is decided the courts, so it is litigated.
[1] https://www.mastercard.com.au/en-au/merchants/safety-securit...
It's interesting to think about a privacy policy tweak as a "price increase". I wonder if data will become regulated to the point where monetary value is transferred away from large companies and towards individual users so countries can tax their citizens on it.
It's muddy when it involves a business and an individual tho - very hard to say if it's fair to tax bartering. But it's certainly not fair (imho) to tax the individual just because it's hard to tax the business for it.
Google did run a popup notification about the change, but:
The ACCC alleges that the “I agree” notification was misleading, because consumers could not have properly understood the changes Google was making nor how their data would be used, and so did not - and could not - give informed consent.
It's not exactly clear what the ACCC is saying here? Is it that Google didn't explain it enough, or is it that no amount of explanation is enough because user's "could not give informed consent"?
“I agree” notification
The conduct is alleged to have impacted millions of Australians with Google accounts.
From 28 June 2016 until at least December 2018, Google account holders were prompted to click “I agree” to a pop-up notification from Google that purported to explain how it planned to combine their data, and sought the consumers’ consent for this.
Some new features for your Google Account
We’ve introduced some optional features for your account, giving you more control over the data Google collects and how it’s used, while allowing Google to show you more relevant ads.
Not sure how you can provide informed consent, when the notification is so vague
Hard to know what the appropriate level here is, but Google sure did a lot more than just saying what the text said.
Plus there is an element of duress since Google is changing the rules for access to a service that the user has come to rely on.
Did you scroll down and look at the screenshots of the popup Google used? There's a lot more information they provide to the user.
It doesn't actually go into the question of how much information is needed for informed consent, just that as things happened, there was not enough.
Informed consent itself actually has a legal definition in regards to the laws the ACCC acts upon, so it might be useful to spell that one out as well:
> Informed consent means that a person:
> a) is provided with appropriate and adequate information
> b) is capable of understanding the nature of the information and the consequences of a decision made in relation to this information
> c) can freely make decisions without unfair pressure or influence from others.