Court of Appeal decision could lead to flood of litigation from Apple users
Google can be held to account by ordinary British computer users following a landmark Court of Appeal decision on cookies.
The court upheld the High Court’s ruling that three British internet users can sue Google for breach of privacy after it ignored their wishes not to have tracking cookies on their computers, in Google v Vidal-Hall [2015] EWCA Civ 311. Cookies, which sit on a user’s browser, gather data on surfing habits, and generate $bns for Google each year.
Tim Pitt-Payne QC, of 11 KBW, says the decision “rewrites the law on damages for breach of the Data Protection Act 1998 (DPA 1998).
“The court held that damages are available for distress alone, regardless of any monetary loss. DPA 1998, s 13(2), which provides otherwise, was disapplied, under Article 47 of the EU Charter (right to an effective remedy). Result: any data breach potentially gives rise to damages claims from distressed individuals.
“Although each claim may be small, where a breach affects thousands of individuals the total liability could be very substantial indeed.”
The court confirmed the High Court’s ruling that breach of privacy is a tort, dismissing Google’s argument that it should only be actionable is there is a financial loss.
Dan Tench, partner at Olswang, which acted for the claimants, says: “Google, a company that makes billions from advertising knowledge, claims that it was unaware that it was secretly tracking Apple users for a period of nine months and had argued that no harm was done because the matter was trivial as consumers had not lost out financially.
“The Court of Appeal saw these arguments for what they are: a breach of consumers’ civil rights and actionable before the English courts.”
The decision potentially opens the door to litigation by millions of Britons who used Apple computers, iPhones and iPads during the relevant period.
Tom Morrison, partner at Rollits, says: “Many will interpret the arguments Google put forward as being an attempt to devalue privacy; a dangerous thing to do when they have found themselves in the privacy spotlight so many times in recent years.”
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