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Vidal-Hall v Google
On 27 March 2015, the Court of Appeal upheld the High Court’s decision in Vidal-Hall v Google which classified misuse of private information as a tort and held that claimants may recover damages under s. 13 of the Data Protection Act 1998 (“DPA”) for non-pecuniary loss.
It is highly probable that there will be a rise in the number of privacy claims in the wake of this landmark decision as claimants no longer need to show that they have suffered financial loss under s.13 DPA. Previously it had been thought that cases where there was no financial loss were barred from making privacy claims under the DPA. However this decision by the Court of Appeal accords with the recommendation contained in the Leveson report which stated that the right to compensation for distress under s.13 of the DPA should not be restricted to cases of financial loss, but should cover compensation for distress.
Background and facts
The claims related to Google’s use of browser-generated information (“BGI”) collected from the claimants over a period of around 6 months from 2011 to 2012. During this period the claimants all owned Apple computers and accessed the internet via Apple’s Safari browser.
Apple Safari automatically blocks third-party tracking cookies by default meaning that Google has not obtained the consent of data subjects using Apple Safari before collecting the BGI. The claimants’ claims were based on the allegation that Google had used a workaround to collect Safari BGI, despite Google’s representation that Safari prevented users’ internet usage from being tracked by DoubleClick.[i]
The claimants brought actions for misuse of private information and breach of confidence, and sought to recover damages for anxiety and distress caused by breach of the DPA.
(As a point of note, there has not yet been a full trial of the issues in Vidal-Hall – the High Court and Court of Appeal proceedings considered below arose due to Google being a Delaware company with its principal place of business in California, meaning that the claimants had to obtain the court’s permission to serve out of the jurisdiction.)
The High Court
In the High Court, Justice Tugendhat found that:
- the claims for breach of confidence were not claims in tort but that there was a tort of misuse of private information;
- there was also a cause of action under the DPA and there were serious issues to be tried in relation to the claimants’ claims that:
- the BGI constituted personal data for the purpose of the DPA claim; and
- claims for compensation under section 13 DPA do not require proof of financial loss; and
- one or both of these causes of action had a reasonable chance of success.
Google appealed against the decision of the High Court. The Court of Appeal identified the issues that were to be considered as:
- whether misuse of private information is a tort;
- whether damages are recoverable under s.13 DPA when there has not been pecuniary loss; and
- whether there was a serious issue to be tried that BGI was personal data.
In brief, the Court answered all four questions in the affirmative and thus upheld the decision of the High Court.
Issue 1 – whether misuse of private information is a tort
The Court summarised the case law to date and noted that the classification of misuse of private information was something that the courts have struggled with. (The significance here was that breach of confidence is an equitable action, so if the claimant’s case fell within this category rather than under the umbrella of tort, the authority in Kitechnology[ii] would prevent the claimants from being able to serve out of the jurisdiction and the non-DPA elements of the claims would fall down.)
After considering the precedents the Court held that there nothing to prevent misuse of private information from being a tort. The Court also drew a distinction between actions for breach of confidence and misuse of private information, as the former protects secret or confidential information and the latter protects privacy.
The Court was keen to point out, though, that this “more natural description” was not revolutionary:
“This does not create any new cause of action. In our view, it simply gives the correct legal label to one that already exists. We are conscious of the fact that there may be broader implications from our conclusions, for example as to remedies, limitation and vicarious liability, but these were not the subject of submissions, and such points will need to be considered as and when they arise.”
Issue 2 – the meaning of damage under the DPA
S.13(1) of the DPA provides that individuals are entitled to be compensated for the “damage” they suffer due to another party’s breach of the DPA. By contrast, s. 13(2) provides that individuals are entitled to compensation for “distress” occasioned by breach of the DPA, but only if they also suffer “damage”, or if the breach relates to data processing for “special purposes”.
The 2007 case of Johnson v MDU[iii] cast doubt on the argument that distress alone was sufficient for a claimant to recover compensation, but the Court held that the relevant comments in Johnson were obiter so it was not bound by this decision. Instead, the Court decided that it should take a broad interpretation of the word “damage” in order to give Directive 95/46/EC (the “Directive”) (which the DPA was intended to implement) its full intended effect, meaning there was no need for the claimant to demonstrate financial loss.
This then raised the issue that the Court’s position on the meaning of “damage” was incompatible with section 13(2) DPA. Under the Marleasing[iv] principle, domestic law should be read to give effect to its underlying EU law roots so far as possible. In this instance the Court felt that it could not read section 13(2) in line with the meaning it ascribed to the Directive, so the Court decided to disapply section 13(2) in line with Benkharbouche[v].
Issues 3 – BGI as personal data
First of all, to be clear, the Court was not in a position to rule on whether BGI is or is not personal data – it only had to decide whether there was a serious case to be tried that BGI might be personal data. Two main arguments were put forward here: whether stand-alone BGI could be personal data, and whether BGI could be personal data when combined with Gmail account data held by Google (despite Google’s protestations that DoubleClick did not do this).
BGI is interesting. Depending on how much and for what purposes one uses the internet, one might generate enough BGI to create an embarrassingly accurate personal profile, but that profile is associated with the browser used, not with the individual, so it will be interesting to see which way this goes at trial. (That said, the increasing use of mobile devices arguably means that BGI is more likely to relate to an individual than ever before.)
The Court considered the text of the Directive, Opinion 4/2007 of the Article 29 Working Party and the ECJ’s decision in the criminal case Linqvist[vi], and held that it was clearly arguable that BGI was personal data under both limbs because:
“…identification for the purposes of data protection is about data that ‘individuates’ the individual, in the sense that they are singled out and distinguished from all others. It is immaterial that the BGI does not name the user. The BGI singles them out and therefore directly identifies them..”
The Court therefore agreed with Justice Tugendhat on this point, and also with the ICO, which had intervened on behalf of the claimants suggesting that BGI could be classed as personal data under the DPA.
And what now?
First and foremost, the disapplication of section 13(2) DPA has opened the floodgates for a potential tidal wave of data protection litigation. Given that there is no need for claimants to show financial loss the new litigation is likely to be for relatively small sums, but data controllers would be advised to pay attention to their compliance and not to wait for the GDPR before getting their data houses in order, as the costs of defending an action are not necessarily proportionate to the amounts claimd.
The classification of misuse of private data as a tort may not have wide-ranging implications immediately, but as the Court noted, there will be issues of remedies, limitation and vicarious liability which will need to be addressed as and when they arise, and we should certainly expect to hear more about it.
Finally, although the question of whether BGI is personal data remains to be decided, the Court’s comments about individuation are a strong indication that data controllers might be prudent to treat BGI as personal data if they do not do so already.
Google has indicated that it will seek permission to appeal to the Supreme Court, though, so to a certain extent it’s a question of watching this space.
Find the full text of the judgment here.
For more information please contact Nicola Fulford.
[i] There is another question here about how much weight should be ascribed to a setting which is a default rather than specifically chosen by a user – but that’s a debate for another day.
[ii] Kitechnology BV v Unicor GmbH Plastmachinen  FSR 765.
[iii] Johnson v Medical Defence Union  96 BMLR 99.
[iv] Marleasing SA v La Comercial Internacional de Alimentacion SA C-106/89  ECR I-4135 CJEU.
[v] Benkharbouche and Janah v Embassy of Sudan and others  EWCA Civ 33.
[vi] Criminal proceedings against Lindqvist C-101/0  QB 1014.