In October 2020, DDP reported on a potential $5 billion class action lawsuit brought against Google for tracking users across the Internet even though users were using “Incognito Mode”.

In March 2021, DDP provided everyone with a further update, pointing out that the Federal Court denied Google’s motion to dismiss. Google argued in its original motion to dismiss that the users’ claims should all be dismissed because Google Chrome users “consented to Google’s collection of [their] data,” even though the users specifically were using Incognito Mode.

The Federal Court rejected this argument, finding that “Google’s representations regarding [Incognito Mode] private browsing present private browsing as a way that users can manage their privacy and omit Google as an entity that can view users’ activity while in private browsing mode.”

Now, right around the holidays, the Federal Court has made three more rulings in favor of the users.

First, on December 22, 2021, the Federal Court denied yet another motion to dismiss brought by Google. Google had a chance to bring another motion to dismiss because the lawyers for the users added two claims against Google (in addition to all of the original claims):  (1) breach of contract, and (2) unfair competition.

Google again argued that the users’ “breach of contract claim must be dismissed because Google did not promise Plaintiffs that using “private browsing mode” would prevent Google from collecting Plaintiffs’ browsing data.” The Federal Court rejected this argument (again), finding that “a reasonable user, reading Google’s contract with Plaintiffs as a whole, could easily conclude that Google promised Plaintiffs that using “private browsing mode” would prevent Google from collecting Plaintiffs’ data.”

Second, just before the holidays, the Federal Court ordered that Google’s Chief Marketing Officer, Lorraine Twohill, sit for deposition. Specifically, lawyers for the users can ask Ms. Twohill about her concerns—expressed in written emails—over Google branding Incognito Mode as “private.”

Third, on December 27, 2021, the Federal Court further ordered that Google’s CEO, Sundar Pichai, sit for deposition regarding his personal knowledge about Google’s collection of user data when users are browsing in Incognito Mode.

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