On October 10, 2018, UK High Court blocked the class-action against Google over unlawful iPhone tracking allegations.
The claimant, Richard Lloyd, alleged that, during 2011 and 2012, Google secretly tracked the internet activity of Apple iPhone users and then sold the data. The method by which Google was able to do this is generally referred to as the “Safari Workaround”.
Mr. Lloyd is the claimant suing not only on his own behalf, but also on behalf of a class of other residents of England and Wales who alleged to have been affected by the Safari Workaround. The group is called “Google you owe us”. The claim is for damages estimated between £1 and 3 billion
for [1] the infringement of their data protection rights, … [2] the commission of the wrong and [3] loss of control over personal data… No material loss or damage is alleged. Nor is there any allegation of distress, anxiety, embarrassment, nor any other individualised allegation of harm.
No other remedy is sought.
According to the court, “it is arguable that Google’s alleged role in the collection, collation, and use of data obtained via the Safari Workaround was wrongful, and a breach of duty.”
However, the court did not hold that there was a basis for claiming compensation under the UK Data Protection Act 1998, DPA, since the facts pleaded in the case did not show damage to any claimant’s right within the meaning of the DPA.
This claim does not depend upon any identifiable individual characteristics of any of the claimants, or any individual experiences of or concerning the Safari Workaround. It is generic. It does not allege the disclosure, or possible disclosure, on any screen of any personal information. There is no allegation that any individual suffered any distress or anxiety, however slight.
The court noted
I do not believe that the authorities show that a person whose information has been acquired or used without consent invariably suffers compensatable harm, either by virtue of the wrong itself, or the interference with autonomy that it involves. Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party. Not everybody objects to every non-consensual disclosure or use of private information about them.
In addition, the Court would not permit the claim to continue as a representative action since the representative claimant and the class (which is difficult to identify) did not all have the “same interest” within the meaning of the applicable civil procedure rules.
Therefore the British High Court of Justice blocked the class action by refusing permission to serve proceedings on Google. (Plaintiff needed permission because Google is a Delaware corporation with principal place of business outside the UK jurisdiction – in California – and it had not agreed to accept service of the proceedings.)
Richard Lloyd v. Google LLC is available at https://www.judiciary.uk… Open PDF
For more information on how data privacy could affect your business, Francesca Giannoni-Crystal and Federica Romanelli.
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