In May 2017, Mr Lloyd (“C”) issued a claim against Google on behalf of a class of over four million Apple iPhone users. C alleged that Google had secretly tracked some of the internet activity of those iPhone users for commercial purposes, known as the “Safari Workaround”, over a six-month period between 9 August 2011 and 15 February 2012.
The Safari Workaround enabled Google to place a ‘DoubleClick Ad’ cookie on a device, without the user’s knowledge or consent, whenever the user visited a website that contained DoubleClick Ad content. This enabled Google to collect ‘browser generated information’ (BGI), which was aggregated into segments such as ‘football lovers’ or ‘current affairs enthusiasts’ and then offered to subscribing advertisers.
To get the claim off the ground, C first had to apply for permission to serve the proceedings outside the jurisdiction on Google in the United States. That application was contested by Google and heard between 21 and 23 May 2018. Warby J dismissed the application for permission to serve Google outside the jurisdiction on three bases:
1. First, although England was clearly the appropriate place for the claim to be tried (since the representative class was restricted to those in England and Wales), none of the represented class had suffered “damage” under section 13 of the Data Protection Act 1998 (the “DPA”). As a result, the claim disclosed no reasonable basis for seeking compensation under the DPA. Warby J described the pleaded case as “circular” because it asserted that the commission of the tort had caused compensatable damage, consisting of the commission of the tort.
2. Second, notwithstanding the decision on damage, the members of the class did not in any event have the “same interest” within CPR r19.6(1) so as to justify allowing the claim to proceed as a representative action. The amount of compensation for any individual depended on the facts; it was not credible that all the specified categories of data were obtained by Google from each represented claimant. Warby J agreed with Google’s submission that it was not possible to identify and exclude unaffected users.
3. Third, the judge could of his own initiative exercise his discretion under CPR r19.6(2) against allowing the claim to proceed. In so doing, Warby J took into account the overriding objective, the likely costs and court time required, and the fact that the compensation that each represented individual was likely to recover would be “modest at best”. It was not unfair to describe the action as “officious litigation”.
The claimant applied for permission to appeal the judgment of Warby J.
Lewison LJ granted permission to appeal on 21 January 2019, on the grounds of the novelty of the claim and the procedure for dealing with it; the public interest in data breaches; the potential number of persons affected; and the potential sums of money involved.