On the morning of 2nd October, the Court of Appeal reversed the decision of the High Court which effectively blocked consumers’ route to redress through representative legal actions.
Facts
The Claimant, Mr Richard Lloyd, brought a representative action against Google LLC. Mr Lloyd makes the claim on behalf of a class of more than 4 million Apple iPhone users. He alleges that Google secretly tracked some of their internet activity, for commercial purposes, between 9th August 2011 and 15th February 2012.
Mr Lloyd alleges that Google was able to identify visits to any website displaying an advertisement from its vast advertising network and collected considerable amounts of information. It could tell the date and time of any visit to a given website, how long the user spent there, which pages were visited for how long, and what advertisements were viewed for how long. In some cases, by means of the IP address of the browser, the user’s approximate geographical location could be identified. Over time, Google could and did collect information as to the order and frequency websites were visited.
The claim alleged breach of the Data Protection Act 1998 (“DPA”).
High Court
On 8th October 2018, The High Court dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction of the USA. Further, they concluded that neither Mr Lloyd or any of those whom he represents had suffered “damage” within the meaning of section 13 of the DPA and the members of the class did not have the “same interest” within the meaning of 19.6 (1) of the Civil Procedure Rule (“CPR”).
Court of Appeal
The recent judgment from the Court of Appeal has reversed the High Court’s ruling and given Mr Lloyd the right to proceed with his representative action against Google.
The Court of Appeal decided that Mr Lloyd can recover damages for loss of control of the data under section 13 of the DPA, implementing article 23.1 of the Data Protection Directive (the “Directive”), without proving pecuniary loss or distress.
Furthermore, the Court held that the members of the class that Mr Lloyd seeks to represent did have the same interest as one another and were identifiable. Mr Lloyd claims a uniform amount by way of damages on behalf of each person without seeking to prove any distinctive facts affecting any of them, save that they did not consent to the abstraction of their data. They are all victims of the same alleged wrong and all sustained the same loss.
The Court of Appeal rejected Google’s main argument that both article 23.1 of the Directive and section 13(1) of the DPA require proof of causation and consequential damage.
What next
Google has stated that they intend to appeal the Court of Appeal’s ruling to the Supreme Court.
The Court of Appeal’s decision is welcome for a number of reasons. First, it goes some way to ameliorating the concerns over representation decision following the Emerald Supplies case; and second, it clarifies that personal data has a value.
To access the full judgment, please click here
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