Earlier this year, The Supreme Court heard Google’s appeal against the Court of Appeal’s finding that it should answer a claim for breach of the UK Data Protection Act 1998 (DPA). The decision is set to have significant ramifications for bringing class actions in the UK.
In 2017, a former executive director of ‘Which?’ magazine sued Google for breach of the DPA. The director alleged that between August 2011 and February 2012, the software giant had used a so-called ‘Safari Workaround’ to bypass default privacy settings on iPhones and track users’ internet activity or ‘browser generate information’ (BGI) without their knowledge or consent and in direct contravention of the DPA.
The director claimed that Google’s actions allowed it to identify users who had visited websites displaying one of its advertisements and could even tell when such a visit was made, how often that user visited a particular website and how long the user spent on each website. That information, it was alleged, allowed Google to deduce those users’ age, gender, interests, habits, political views and even their financial position and thereafter, categorize each user into groups, such as ‘football lovers’ or ‘film enthusiasts’. The results of that classification were then sold to advertisers, to allow them to direct their adverts accordingly.
The High Court
In May 2017, proceedings were issued against Google in the High Court. The claim was filed on behalf of the director and also on behalf of an entire class of iPhone users in England and Wales whose BGI had been gathered in that manner, estimated to be around four million in total.
At first instance, Warby J dismissed Mr Lloyd’s application. In reaching his decision, he concluded that the director and the other members of the class had not suffered ‘damage’ within the meaning of section 13 of the DPA and as such, that the claim had failed to disclose a basis for seeking compensation.
Warby J further ruled that the requirements of CPR 19.6, which claimants issuing on behalf of others must satisfy, had not been met because the users in question did not have the ‘same interest’ and could no easily be identified as falling within the class. Exercising his discretion under CPR 19.6(2), the Judge directed that the director could not act as a representative of the class. This decision was subsequently appealed and heard in the Court of Appeal.
The Court of Appeal
The Court of Appeal concluded that:
- Damages were recoverable where a claimant had suffered a ‘loss of control’ under DPA Section 13, irrespective of whether that claimant had suffered pecuniary loss or distress.
- The users that the Director purported to represent did have the same interest for the purposes of CPR 19.6 and were readily identifiable as members of that class.
- That Warby J had erred in exercising his discretion to prevent the claim from continuing, nothing that the members of a class do not have to authorize a representative claim.
In reaching its decision, the court pointed to Google’s sale of the users’ BGI as being indicative of the fact that control over data, capable as it was of being sold, was an asset of value.
Google appealed this decision and it was subsequently heard at the Supreme Court.
The Supreme Court
At the Supreme Court hearing, Anthony White QC for Google suggested that the decision to effectively open the flood gates to opt-out class actions in the UK was not a decision for the court, but something that should be left to parliament. Mr White acknowledged that Article 80(1) of the GDPR allows for collective proceedings for compensation by not-for-profits, but noted that to date both the EU and UK parliaments have held back on introducing a collection action opt-out procedure in date protection. Additionally, the claim by Mr Lloyd involved litigation funders rather that the not-for-profits contemplated in the context of the GDPR. Mr White also suggested that there was a real problem with being able to identify class members and that the Court of Appeal judges failed to use their discretion in considering the relevant factor of impracticality of the class.
The potential impact of the Supreme Court’s decision cannot be overstated and shall have wide ranging implications. If the Supreme Court agrees with the Court of Appeal and permits Mr Lloyd to serve the representative action on Google, on behalf of the over four million iPhone users, this could open the doors to ‘opt-out’ representative actions.
The decision is also likely to impact upon litigation funding, with the majority of representative claims likely to require funding in place to get off the ground.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email email@example.com or visit our Linkedin page.
This information was correct as at September 2021