Representative action claim rejected
Google has succeeded in its much-awaited appeal resisting a representative data protection action brought against it on behalf of some four million iPhone users in England and Wales. The claim was based on Google’s tracking in 2011 and 2012 of browser generated information without the knowledge or consent of users.
At first instance Warby J declined the representative claimant – Mr Richard Lloyd – permission to serve proceedings on Google LLC out of the jurisdiction in Delaware on two bases. First he concluded that data protection damages – under the Data Protection Act 1998 – cannot be awarded without proof that a breach of the data protection legislation caused an individual to suffer financial damage or distress. In other words since the case presented was for compensation but not based on that sort of damage it could not succeed. Secondly Warby J concluded that the claim was not suitable to proceed as a representative action in any event. The Court of Appeal however reversed Warby J’s decision.
The Supreme Court has now reinstated Warby J’s order – meaning that the claim cannot proceed. Lord Leggatt gave the Judgment of the unanimous Court. He rejected the claimants’ contention – which had been supported by the UK Information Commissioner – that a uniform sum of damages can be awarded to each member of the represented class without the need to prove any facts particular to that individual so that compensation can be awarded for “loss of control” of personal data. Rather Lord Leggatt emphasised that compensation under the 1998 Act is only available for material damage (such as financial loss) or mental distress distinct from and caused by unlawful processing of personal data in contravention of the Act and not for such unlawful processing itself. Further he found that it is in any event necessary to recover such compensation to prove what unlawful processing relating to each given individual occurred. In the circumstances the claims were unsustainable in the light of the data protection arguments advanced on behalf of Google.
So far as the use of a representative action is concerned Lord Leggatt explained that while the present case was unsustainable there was no general bar to a representative claim that each represented person has a separate cause of action or that the relief claimed consists of or includes damages. The representative procedure remains a flexible tool of convenience in the administration of justice. For example damages may be claimed in a representative action if they can be calculated on a basis common to all those represented; and issues of liability may be decided in a representative action which can then form the basis for individual claims for compensation.
This Judgment will of course be pored over by data protection and group action lawyers. 5RB is producing a webinar on this important area for its registered client base which will be available shortly.