Google collected and sold to advertisers online behaviour by UK residents without their knowledge or consent, through exploiting private browser settings in Apple’s Safari web browser. 

In an application brought by three UK individuals for leave to serve US based Google Inc out of the jurisdiction, the Court of Appeal held that the three may bring claims in England against Google for misuse of their private information and breach of the Data Protection Act 1998 (“DPA”). [1]

The court held that:

  • misuse of private information is a tort for the purposes of the relevant Civil Procedure Rules (even though its origins lie in breach of confidence), the court noted that it was conscious that there may be broader implications from its conclusions, for example as to remedies, limitation and vicarious liability and such points will need to be considered as and when they arise;
  • damage under the DPA may include not just financial damage but also distress. The court looked at Article 23 of the Data Protection Directive for assistance with interpreting “damage” and found that it does not distinguish between pecuniary and non-pecuniary damage. There was no linguistic reason to interpret the word "damage" in article 23 as being restricted to pecuniary damage. The court disapplied section 13(2) of the DPA which limits the right to non pecuniary damages on the grounds that it conflicted with the rights granted by Articles 7 and 8 of the EU Charter;
  • there is a serious case to answer which merits a trial that behavioural data collected by third party cookies is personal data, even when not connected to other information directly identifying an individual. The court found that it was apparent that the issue raised is not clear-cut or straightforward. The court made no findings on the issue and stated that this issue was best left to be determined at trial, and
  • there are other issues, such as the secret blanket tracing and collation of information, that merit a trial, irrespective of any modest award of damages.

As a result of this decision there will be a full trial in England unless Google successfully appeals this decision.

This is an important decision which will be watched closely by the legal world and beyond.  Google has already been fined $22.5m by the Federal Trade Commission in the US for its practice.