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The Supreme Court delivered a landmark judgment when it unanimously rejected a claim by Mr. Richard Lloyd to bring a class-action for damages upon behalf of 4m Apple iPhone users against Google under Section 13 of the Data Protection Act 1998 (DPA 1998).
The Background to the Claim
Mr Lloyd alleged that Google secretly tracked the internet activity of the iPhone users for commercial purposes between 9th August 2011 and 15th February 2012 and obtained significant amounts of information without the iPhone users' consent or knowledge and for Google's own commercial purposes. The purpose was to target the iPhone users with certain advertisements based upon the users' browsing history.
The matter was first heard in the High Court where Warby J found on both issues in favour of Google and refused Mr Lloyd leave to serve the proceedings on them in the US.
The matter then went to the Court of Appeal where the decision of Warby J at first instance was reversed.
Google appealed to the Supreme Court.
The Supreme Court unanimously found in favour of Google and restored the Order made by the Judge at first instance.
Lord Leggatt scrutinised the representative procedure finding that it was a "flexible tool of convenience in the administration of justice". As Digital technology is now so far advanced the potential for wide ranging harm is very clear.
Lord Leggatt also considered that the "same interests" requirement should be decided in accordance with the overriding objective of the Civil Procedure Rules of dealing with cases justly and fairly. The Judge went on to state that damages may be claimed in a representative action (class action) if they are capable of being calculated on a basis common to all of the individuals that are represented.Alternatively, liability might be decided in a representative action which can then form the basis for individual claims for compensation.
In this case it was found that a representative claim could have been brought to establish if Google had breached the DPA 1998 as a springboard for the individuals affected pursuing claims for compensation later. However, Mr Lloyd had not approached the action using this 2-stage process, almost certainly because to deal with it in that way would not have been economic if every individual had to show their own loss. Mr Lloyd argued that a uniform sum of damages for each claimant of the class action could be approved without having to show the facts of every case for every individual.
A further limb of Mr Lloyd's argument was supported by the Information Commissioners Office. He stated that compensation could be awarded under the DPA 1998 in circumstances where there is a loss of control of personal data which has happened because of a non-trivial contravention by a data controller of any of the requirements of the DPA 1998.
In considering these matters Lord Leggatt rejected the arguments put forward by Mr. Lloyd for the following reasons: -
In the circumstances the Court rejected the appeal and refused permission for Mr. Lloyd to serve the proceedings on Google outside of the jurisdiction.
The full Judgment can be found at Lloyd (Respondent) -v- Google LLC (Appellant)  UKSC 50
For more information on this please contact our Commercial Litigation team here.
This article was written by Nick Hatchett, Partner in our Company & Commerical Team. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of November 2021.