Partial permission to appeal granted on data protection aspect of case
The Supreme Court has granted Google permission to appeal in part in Vidal-Hall v Google.
Permission to appeal was given in relation to the issue of whether compensation under section 13(2) Data Protection Act 1998 can be awarded for distress where no pecuniary damage has also occurred. The Court of Appeal decided in March that such an award could be made. The wording Section 13(2) – which requires pecuniary loss to be established before compensation can also be award for distress, except where processing is for the ‘special purposes’ of literature, journalism and the arts – could not be interpreted compatibly with Article 23 of the Data Protection Directive. Section 13(2) should be disapplied as it conflicts with the rights guaranteed by Articles 7 (right to private and family life) and 8 (right to protection of personal data) of the EU Charter of Fundamental Rights.
Google had also sought permission to appeal on the issue of whether misuse of private information is a tort. Both Tugendhat J at first instance and the Court of Appeal decided that it was a tort for the purposes of the rules providing for service of proceedings out of the jurisdiction. The Supreme Court refused permission to appeal on this point as it “does not raise an arguable point of law.” This in effect confirms that misuse of private information is indeed a tort.
The case is brought by three individuals who used Apple computers and the Safari browser to access the internet. They claim that the defendant, Google (here the appellant) collected their private and personal information (namely their browser-usage) without their knowledge or consent by means of cookies and then used this information to provide targeted advertising, which revealed private information about them and could have been seen by third parties using their devices. The claimants claim damages or compensation for distress.
A 5RB case report on the Court of Appeal decision can be found here.
The Supreme Court website has a news report on the decision to grant permission to appeal here.