Group Action Shake Down

Wednesday 18 December 2019

The Court of Appeal recently issued a judgment in ‘Richard Lloyd v Google’ which could be ground-breaking in terms of group litigation.  It involves the way a claim can be brought through representative action, and in this instance, specifically with regards to a data privacy breach.

It is alleged that Google used the “Safari Workaround” to collect extensive amounts of internet usage data belonging to approximately 4 million Apple iPhone users.

Mr Lloyd embarked on a representative action on behalf of millions of end-users in the UK whose mobile browser data was collected by Google, in breach of the Data Protection Act 1998.  A representative action is where a claim is brought on behalf of a group of people who have the “same interest” in a claim.  Usually these matters are dealt with by way of group litigation which requires those affected to be identified and to join the litigation, which can be difficult and time consuming, not to mention costly.

In the first instance, the High Court dismissed the claim as “none of the millions of affected people in England and Wales had come forward to complain”, and held that the conditions for such an action had not been met.  It was further held that the members did not have the “same interest” because of the differing levels of data tracked by Google, and that there were practical difficulties in ascertaining whether a phone user was a member of the relevant class.

The Court of Appeal, however, overturned this decision.  Their key findings were :

The Claimants should be compensated as they had lost control of their data

The Court of Appeal found that a person’s control over their data has value, and therefore the loss of control over that data must also have value.  Thus, damages could be awarded to compensate for this loss, even if there was no pecuniary loss or distress caused.

The Claimants do have the “same interest”

As the nature of the breach was the same, and the loss claimed the same, the parties were found to have the same interest.

Therefore, the case should be allowed to continue and that Google should be held accountable for “its allegedly wholesale and deliberate misuse of personal data without consent, undertaken with the view to make profit.”

As this type of representative action was the only way to realistically bring the claim, the Court of Appeal exercised its discretion and overturned the High Court.

Google has confirmed its intention to appeal to the Supreme Court.

This could well be a defining moment, as it moves the UK towards the American Style “Class Action”, where individuals who may fall within a claim are included unless they opt out.

If you have any data breach claims where you require Funding or ATE Insurance, we have experience in placing these type of cases and would love to hear from you.

Thank you for your support this year; we wish you a Merry Christmas and a Happy New Year.

 

Vanessa Andrews
December 2019