This blog is written by Aryan Sharma of Institute of Law, Nirma University, Ahemdabad
INTRODUCTION
General search engine plays a central role in the world of internet market. Google, covering around 86.6 percent of the general search is the undisputed king.[1] On the one hand, by simplifying different algorithms and complex operations Google provides a very user-friendly interface. But on the other hand, Google’s increasing market muscle has been a point of concern regarding the abuse of this dominant position. This very fact was also stated by the complaint of the US justice department in the recent Antitrust suit. [2] Google by making different types of deals with device manufacturers has set its search engine as the default search engine. This leads us to ignore the presence of other alternatives in the search engine market. In addition to that Google consumes a lot of data of an individual and further shares that data with other companies as business tactics.[3] Hence by misusing this dominant position, they strike the competition which uses less data. Starting from downloading Google search engine to Google Calendar, Gmail, Google Photos, it takes our data in all different platforms and trades this particular data with other companies. According to the leading sources, Google consumes the maximum data of the consumers and is the worst in privacy practices when compared to other players like Yahoo, Bing, Duckduckgo.[4] Google by creating different databases captures our day to day information and controls our digital lives.[5] User privacy is one of the key elements that every market should safeguard, the importance of which has been renounced by the Supreme Court in various judgments.[6] The central objective of this article is to analyze different aspects of Google’s monopoly in the context of the breach of privacy of the user.
YOU’RE BEING WATCHED. ARE YOU OKAY WITH THAT?
Whenever we shop from Amazon or Myntra the same products pop in our Google search bar through adds. Similarly, when we are watching YouTube videos, the very same video pops on the search bar, how does this happen? how does Google know what we are shopping or watching? Almost every add that you see is tailored for you. This type of advertisement is known as a targeted advertisement.[7] They are backed by loads of personal information through servers and hidden datasets which know exactly who you are and what you are doing. The data generated through the regular searches of the consumers are fed in the servers. That data makes a pattern and that pattern defines your choice, mood, gender, religion, etc. Thus, based on such data we see the advertisements that are specifically targeted at us. Frederike Kaltheuner, who heads the corporate exploitation program at privacy international, says “targeted advertisement becomes exponentially more invasive, and most people are completely unaware of what kinds of data feeds into the targeting.”[8] The data given by the users to Google is traded with other multinational companies like Amazon, Facebook, Myntra for profits. They in turn run their business through the ad generated from our data. This essentially is a breach of privacy of the consumers. When a consumer does a regular Google search he simply intends to get information, the consent for the trade of that particular data is never present. Other search engines like Yahoo, Bing, etc. do not involve themselves in these types of targeted advertisements, and hence takes less data and safeguard the privacy of the consumer.[9]
PRIVACY POLICIES AND THE LIMITS OF CONSENT
There are no specific rules in India or the US relating to the use of search log data prevention, storage, and dissemination. Hence due to this, different search engine players like Google take the liberty to develop their own privacy policies which are deeply flawed and breaches the privacy of an individual. “We may also share information with third parties in limited circumstances, including when complying with legal process.”.[10] The word “limited circumstances” is open to wide interpretation and creates a loophole for the exploitation of the data. Google in its privacy policy reserves the right of correlating the previous information gathered through the search queries to the information given through mail. [11]Google relates this data and portrays it as an important practice to provide a user-friendly interface. But this comes under the breach of privacy as clearly held in the case of Gonzales v. Google, Yahoo, Microsoft, and AOL. [12]
The major shortcoming in the privacy policies is the informed user consent. Most of the time user gives consent without even knowing the consequences. The agreement for consent is a clickwrap agreement, wherein by one click you are deemed to accept all the policies of Google.[13] Moreover, in these types of agreements, there are no negotiations on the part of the consumers. You can accept the unilateral arbitrary agreement or else you are out of the page. By creating a monopoly in the market, Google does not leave the consumers with other options than to accept the privacy policy. This is essentially consent through coercion from an uninformed user. Through this Google preserves the right to retain, analyze, and possibly disclose user's data which is very determinant to the users' privacy and has a long-lasting impact.
LEGAL STANDPOINT
According to the Indian constitution, privacy of an individual is given primary importance. Moreover, privacy laws in India have evolved with time. Personal data is preserved in an indirect way in accordance with the common law structure and many judgments provide different safeguard to the personal data. In the landmark case of K.S Puttaswamy V. Union of India, the Supreme Court of India has recognized the right to privacy as a fundamental right under Article 21, i.e. the right to life and personal liberty.[14] “Informational privacy” has been recognized as being a facet of the right to privacy. Personal identity and data are given key importance and using this data requires consent, if free consent is not taken then that becomes a breach of privacy.
CONCLUSION
The US justice department case and Google’s privacy debacle is not an isolated or exceptional occurrence, these cases are just the tip of the iceberg.[15] Google has secured a dominant position in the market and by misusing that dominant position has created a monopoly in the search engine market. This in turn violates Section 2 of the Sherman Antitrust Laws, 1890.[16] Google demands a large amount of data from the users as compared to Yahoo, Bing, and Duckduckgo. Further since Google has the monopoly to control the market, the users have no option but to get exploited by providing their personal information. The data provided to Google is then traded to multinational companies that use these data to target ads to us. The antitrust case against Google will play a pivotal role in these increasing privacy concerns. Through this case the monopoly of Google is challenged and that ultimately rests with securing the privacy of the consumers. Privacy in both Indian, as well as foreign laws, has been given a lot of importance. However there requires a better-specified privacy law relating to the search engine market. This is so that a company like Google cannot exploit the privacy of the users by misusing its dominant position and monopolizing the market.
[1]J. Clement, Global market share of search engines 2010-2020, Statista (Nov 20, 2020). [2] UNITED STATES OF AMERICA et al v. GOOGLE LLC, 1:20-cv-03010 (District of Columbia) (pending). [3] Knowledge@Wharton, Your Data Is Shared and Sold…What’s Being Done About It?, Wharton university, (October 28, 2019), https://knowledge.wharton.upenn.edu/article/data-shared-sold-whats-done/ . [4]Ottohopkinsfagan, how is Google breaching data privacy ?, The Lawyer Portal, ( September 17, 2018), https://www.thelawyerportal.com/blog/how-is-google-breaching-data-privacy/ . [5]Gemma Simpson, Google scores lowest in privacy rankings, zdnet, (June 12, 2007), https://www.zdnet.com/article/google-scores-lowest-in-privacy-rankings/ . [6] K.S Puttaswamy v. Union of India, (2017) 10 SCC 1. [7]Plumber, Joe; Rappaport Steve; Hall, Taddy, The online Advertising Playbiik: Proven Strategies And tested Tactics from Advertising research foundation(1ed). John Wiley & sons (4th November, 2007). [8]Stuart. A Thompson, Theses Ads Thinks They Know You, The New York Times, https://www.nytimes.com/interactive/2019/04/30/opinion/privacy-targeted-advertising.html . [9]Omer Tene, WHAT GOOGLE KNOWS: PRIVACY AND INTERNET SEARCH ENGINES, Westlaw, (2008), https://www.researchgate.net/publication/228226680_What_Google_Knows_Privacy_and_Internet_Search_Engines [10] Ibid. [11]Complaint and Request for Injunction, Request for Investigation and for Other Relief at 1, In re Google and DoubleClick, Federal Trade Commission File 071-0170 (F.T.C. Apr. 20, 2007). [12]Gonzales v. Google, 234 F.R.D. 674, 679 (N.D. Cal., 2006). [13]Robert A. Hillman & Jeffery J. Rachlinski, Into Contract's Undiscovered Country: A Defense of Browse-Wrap Licenses, 39 San Diego L. Rev. 1363, 1384-86 (2002) (discussing the criticisms of browse-wrap licensing), https://www.researchgate.net/publication/228226680_What_Google_Knows_Privacy_and_Internet_Search_Engines [14] Supra note 5. [15]UNITED STATES OF AMERICA et al v. GOOGLE LLC, 1:20-cv-03010 (District of Columbia) (pending). [16]Sherman Anti-Trust Act, 15 U.S.C. § 2, (1890).
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