Peter A Clarke

The UK Supreme Court has granted Google leave to appeal the Court of Appeal’s decision in Google v Vidall Hall & ors.  The Court of Appeal decision is a significant advance in the development of the privacy related actions, from an equitable claim to a tort.

The summary provides:

The Supreme Court has granted permission in part for Google to appeal the Court of Appeal of England and Wales’ decision in a case relating to a dispute over the user information through cookies via use of the Apple Safari Browser.

The Respondents complain that Google collected private information about their internet usage (the Browser-Generated Information – “BGI”) via the Apple Safari browser, and without their knowledge and consent, by means of cookies. This information enabled Google to offer this information to advertisers via its “doubleclick” advertising service which in turn enabled advertisers to select advertisements targeted or tailored to the claimants’ interests, as deduced from the collected BGI, which could be and were displayed on the screens of the claimants’ computer devices. This revealed private information about the claimants, which was or might have been seen by third parties. This was also contrary to Google’s stated position that such activity could not be conducted for Safari users unless they had expressly allowed it to happen. The Respondents’ claims concerned the internet usage period between Summer 2011 and Spring 2012. None of the Claimants alleges any pecuniary loss or other material damage. Their claims are for damages or compensation for distress.

The issues before the Court of Appeal were whether the cause of action for misuse of private information is a tort and whether there can be a claim for compensation without pecuniary loss within the meaning of damage in section 13 of the Data Protection Act 1998.

The Court of Appeal ruled that the misuse of private information constitutes a tort for the purposes of the rules providing for service of proceedings out of the jurisdiction and held that the claimants could recover damages for non-material loss. The issue of compensation for a contravention by a data controller is dealt with in Article 23 of the Directive (95/46/EC) and the Court of Appeal found it was not possible to interpret section 13(2) of the Data Protection Act 1998 in a way that was compatible with Article 23. It ruled that Section 13(2) of the 1998 Act should be disapplied on the grounds that it conflicts with the rights guaranteed by Articles 7 (right to private and family life) and 8 (right to protection of personal data) of the EU Charter of Fundamental Rights.

Google applied for permission to appeal to the Supreme Court on the following grounds:

1. Whether the Court of Appeal was right to hold the Claimant’s claims for misuse of private information are claims made in tort for the purposes of the rules relating to service out of the jurisdiction.
2. Whether the Court of Appeal was right to hold that section 13(2) of the Data Protection Act 1998 was incompatible with Article 23 of the Directive.
3. Whether the Court of Appeal was right to disapply section 13(2) of the Data Protection Act 1998 on the grounds that it conflicts with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights.