The Media and Communications List of the High Court of Justice (‘the High Court’) issued, on 8 October 2018, its judgment in Richard Lloyd v. Google LLC (‘the Judgment’) concerning the alleged unlawful tracking of the internet activity of Apple iPhone users and the subsequent collation, use and sale of such information by Google. The High Court accepted that the pleaded contraventions breached the statutory duty provided by Section 4(4) of the Data Protection Act 1998 (‘the Act’) by tracking, collation, aggregation, and sale of personal data without consent, but held that there had been no damage within the meaning of Section 13 of the Act. Furthermore, it did not allow the claim to continue as a representative action, finding that, neither Lloyd nor any of those whom he represented had the ‘same interest’ within the meaning of Section 19.6(1) of the Civil Procedure Rules 1998.
Greg Palmer, Managing Associate at Linklaters LLP, told DataGuidance, “The claim was defeated fairly comprehensively. The key point is that you can only claim compensation where there is some form of damage or distress. A technical breach will not do. This presents insuperable problems for this type of class action where the position of each individual will vary wildly. Some might have suffered actual damage, as presumably the claimants did in Vidal-Hall v. Google Inc but many may have been unaffected.”
There is a need to establish an infringement of the legislation and that such infringement has led to particular damage being suffered by an individual
In particular, Lloyd acted as the sole and representative claimant of a class of residents of England and Wales (‘the Class’) who purported that a third party cookie used by Google enabled it to obtain or deduce information about people’s internet habits and location, as well as their interests, race or ethnicity, social class, political or religious views or affiliations, age, health, gender, sexuality, and financial position. Moreover, it was alleged that Google, having obtained this information, created specifically categorised groups and offered such information to advertisers, allowing them to target their advertisements.
Leonie Power, Partner at Fieldfisher LLP, highlighted, “[The claim] does not rely on any individual experiences of or concerning the tracking activity undertaken by Google. In essence, there is no allegation that any individual suffered distress or anxiety. Instead, there is an attempt to construe the contravention of the Act itself as amounting to damage and to argue for an equal standard ‘tariff’ award for each claimant. Mr Justice Warby rejected this approach and decided the issue on the basis of the wording of Section 13 of the Act, which envisages both infringement of the Act and damage, as well as a causal link between the two. For the purposes of the Data Protection Act 2018, the Judgment suggests that establishing an infringement of the legislation of itself will not necessarily lead to the recovery of compensation […] There is a need to establish an infringement of the legislation and that such infringement has led to particular damage being suffered by an individual.”
In relation to the continuation of representative proceedings, the High Court stated that the Class included persons who had no cause of action, and thus no ‘interest’ in the claim and that, additionally, those claimants who had suffered ‘damage’ would have different interests from one another, depending on the individual facts of their cases.
Palmer concluded, “If you set a flat tariff to compensate each affected individual, some will over-recover and some will under-recover as they do not have the ‘same interest’, hence the representative action must fail […] Some of the findings will also be relevant to large scale group litigation orders (effectively opt-in class actions). In particular, the High Court’s decision not to simply set a flat rate compensation tariff, means that claimants to group litigation orders will likely have to prove their damage on a case-by-case basis. In many situations, that will present significant practical difficulties.”
NIKOS PAPAGEORGIOU Privacy Analyst