Kerry Underwood

REPRESENTATIVE ACTION AGAINST GOOGLE GIVEN GO-AHEAD BY COURT OF APPEAL

leave a comment »


Underwoods Solicitors are the solicitors for Crowe UK LLP, the Joint Liquidators of the Cambridge Analytica Group of Companies

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Richard Lloyd v Google LLC [2019] EWCA Civ 1599

the Court of Appeal allowed Mr Richard Lloyd to bring a representative action against Google LLC 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 9 August 2011 and 15 February 2012.

The Court of Appeal distinguished its own decision in

Vidal-Hall v Google Inc [2015] EWCA Civ 311.

The Court of Appeal thus overturned the High Court’s decision in

Lloyd v Google LLC [2018] EWHC 2599 (QB)

dealt with by me in my blog –

GOOGLE: ACTION FOR DAMAGES FOR BREACH OF DATA PROTECTION ACT FAILS.

I set out below part of the Court of Appeal’s own summary of their judgment.

 

Summary

Mr Lloyd alleges that Google was able to identify visits to any website displaying an advertisement from its vast advertising network, and to collect 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 in which and the frequency with which websites were visited.

Mr Lloyd alleges that this tracking and collating of Browser Generated Information (“BGI”) enabled Google to obtain or deduce information relating not only to users’ internet surfing habits and location, but also about such diverse factors as their interests and habits, race or ethnicity, social class, political or religious views or affiliations, age, health, gender, sexuality, and financial position. In addition, it is said that Google aggregated BGI from browsers displaying sufficiently similar patterns, creating groups with labels such as “football lovers”, or “current affairs enthusiasts”. Google’s DoubleClick service then offered these groups to subscribing advertisers, allowing them to choose the type of people to whom they wanted to direct their advertisements.

The first instance judge, Mr Justice Warby, had dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction in the USA, so preventing the claim getting under way.

The Court of Appeal has reversed the judge’s decision and given Mr Lloyd the right to proceed with his representative proceedings against Google in the Media and Communications Court in London.

The Court of Appeal decided three legal questions as follows:

i) First, that a claimant can recover damages for loss of control of their data under section 13 of Data Protection Act 1998 (“DPA”), implementing article 23.1 of the Data Protection Directive (the “Directive”),1 without proving pecuniary loss or distress;

ii) Secondly, that the members of the class that Mr Lloyd seeks to represent did have the same interest as one another under Part 19.6(1) of the Civil Procedure Rules and were identifiable; and

iii) Thirdly, that the judge ought to have exercised his discretion to allow the action to proceed as a representative action.

The appeal raised important issues that were not decided by the Court of Appeal in Vidal-Hall v. Google Inc [2015] EWCA Civ 311 (“Vidal-Hall”). Although Vidal-Hall was argued on the basis of analogous underlying facts, there was one crucial difference. In that case, the individual claimants claimed damages for distress as a result of Google’s breaches of the DPA. In this case, 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.

The court relied on the decision in the phone hacking case of Gulati v. MGN Limited [2015] EWCA Civ 1291 (CA) (“Gulati”) to decide that, if damages are available without proof of pecuniary loss or distress for the tort of misuse of private information, they should also be available for a non-trivial infringement of the DPA, as both claims are derived from the same fundamental right to data protection contained in article 8 of the Charter of Fundamental Rights of the European Union 2012/C 326/02 (the “Charter”): “[e]veryone has the right to the protection of personal data concerning him or her”.

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. The words in section 13 “[an] individual who suffers damage by reason of [a breach] is entitled to compensation” justify such an interpretation, when read in the context of the Directive and of article 8 of the European Convention on Human Rights and article 8 of the Charter, and having regard to the decision in Gulati. Only by construing the legislation in that way could individuals be provided with an effective remedy for the infringement of such rights.

The claim was an unusual use of the representative procedure, but the Court held that it was permissible on the authorities. The claimants that Mr Lloyd seeks to represent will all have had their BGI – something of value – taken by Google without their consent in the same circumstances during the same period, and were not seeking to rely on any personal circumstances affecting any individual claimant (whether distress or volume of data abstracted). The represented class were all victims of the same alleged wrong, and had all sustained the same loss, namely loss of control over their BGI. Mr Lloyd’s concession that he would not rely on any facts affecting any individual represented claimant had the effect of reducing the damages that could be claimed to the lowest common denominator. But it did not mean that the represented claimants did not have the same interest in the claim. It was impossible to imagine that Google could raise any defence to one represented claimant that did not apply to all others.

Written by kerryunderwood

October 15, 2019 at 8:47 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: