The UK Supreme Court has today granted Google partial permission to appeal in the Vidal-Hall case. The permission covers the data protection issues but not the issue as to whether misuse of private information is a tort. On this last issue the decision of the Court of Appeal ( EWCA Civ 311) stands. Misuse of private information is now clearly established as a tort and the claims can proceed against Google regardless of the result of the data protection appeal.
We had a case comment on the Court of Appeal decision. In brief, the claimants complained that Google collected private information about their internet usage (the Browser-Generated Information – “BGI”) via the Apple Safari browser, and without their knowledge and consent, by means of cookies. This information enabled Google to offer this information to advertisers via its “doubleclick” advertising service which in turn enabled advertisers to select advertisements targeted or tailored to the claimants’ interests, as deduced from the collected BGI, which could be and were displayed on the screens of the claimants’ computer devices.
The issues before the Court of Appeal were whether the cause of action for misuse of private information is a tort and whether there can be a claim for compensation without pecuniary loss within the meaning of damage in section 13 of the Data Protection Act 1998 (“the DPA”).
The Court of Appeal ruled that the misuse of private information constitutes a tort for the purposes of the rules providing for service of proceedings out of the jurisdiction and held that the claimants could recover damages for non-material loss. The issue of compensation for a contravention by a data controller is dealt with in Article 23 of the Directive (95/46/EC) and the Court of Appeal found it was not possible to interpret section 13(2) of the DPA in a way that was compatible with Article 23. It ruled that Section 13(2) of the DPA should be disapplied on the grounds that 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 applied for permission to appeal to the Supreme Court on the following grounds:
- Whether the Court of Appeal was right to hold the Claimant’s claims for misuse of private information are claims made in tort for the purposes of the rules relating to service out of the jurisdiction.
- Whether the Court of Appeal was right to hold that section 13(2) of the Data Protection Act 1998 was incompatible with Article 23 of the Directive.
- Whether the Court of Appeal was right to disapply section 13(2) of the Data Protection Act 1998 on the grounds that it conflicts with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights
The Supreme Court granted permission to appeal in part. The substantive text of its Order reads:
“The Court ordered that permission to appeal be refused on ground one (the issue whether the claim is in tort) because this ground does not raise an arguable point of law. The Court ordered that permission to appeal be granted on all other grounds”.