Appeal dismissed, and permission to appeal to the UK Supreme Court refused:
1) Misuse of private information was distinct from breach of confidence, and should now be recognised as a tort for the purposes of service out of the jurisdiction. This does not create a new cause of action, but rather gives the correct label to one that already exists. The implications (as to remedies, limitation, vicarious liability) were not in issue and would have to be resolved by the courts as they arose -.
2)The DPA was intended to implement Directive 95/46/EC. Article 23 of the Directive allowed for compensation for ‘damage’. Legal terms in EU law have an autonomous meaning, which should be given effect harmoniously across the laws of Member States. Section 13 DPA, which provides for compensation for ‘damage’ suffered by a breach of the DPA only allowed damages for distress if one of the criteria in s.13(2) was met (i.e. extra to pecuniary loss, or that the contravention was related to one of the ‘special purposes’ being literature, journalism and the arts). It was not possible, even relying on the Marleasing principle, to adopt a meaning inconsistent with a fundamental feature of the legislation. Section 13(2) could not be interpreted compatibly with Article 23 of the Directive. The claimants, supported by the Information Commissioner, submitted that s.13(2) should be disapplied because it conflicts with Articles 7 and 8 of the EU Charter of Fundamental Rights (“EUCFR”), and the Court of Appeal agreed. Disapplication was required, and such a decision did not for the court to legislate for its absence (Benkharbouche applied, Chester distinguished): see -, -
3) There was a serious issue to be tried as to whether the browser-generated information was personal data, but the Court of Appeal would go no further than that. The judge was not plainly wrong, and the matter would be better resolved at trial.
4) The Court of Appeal considered the claims raised serious issues and that the appellant/defendant did not come close to establishing Jameel The damages may be small, but the issues of principle were large.