England “clearly” the right forum for privacy and data protection claims against Google Inc, says Tugendhat

21 Jan 2014

The High Court in England is allowing British residents to sue Google Inc in England for misuse of private information and breach of its duties under the Data Protection Act 1998. In the important decision this month (Vidal-Hall & Others and Google Inc), highly experienced privacy judge, Mr Justice Tugendhat, rejected Google Inc's argument that the English court had no jurisdiction to try the claims. He ruled that the main focus of the case was likely to be on the damage each claimant claimed to have suffered. The claimants were individuals resident in England, he said, "for whom bringing proceedings in the USA would be likely to be very burdensome". There were serious issues to be tried and the claimants had clearly established that England was the appropriate jurisdiction. The issues of law raised by Google Inc were complicated ones and in a developing area of law. It was, he said, "better for all parties that the issues of English law be resolved by an English court, with the usual right of appeal, which would not be available if the issues were resolved by an American court deciding English law as a question of fact."

The claims concern Google Inc's collection of information from the devices the claimants used to access the internet and use of that information to generate advertisements targeted at them from the summer of 2011 to about February 2012. The claimants' complaint is that, in this process, third parties did, or might well have, learned about deeply private matters relating to them. A person's surfing habits are likely to reveal not only their personalities, their immediate plans and ambitions, where they live and how old they are but also their secret wishes and ambitions, political and religious beliefs, details about their physical and mental health, sexuality and sexual interests and financial affairs. The claimants say that when they learned that third parties may have found out about their web browsing they suffered acute distress and anxiety as well as damage to their personal dignity, autonomy and integrity. In Tugendhat's view, each claimant had a sufficiently arguable case that their Article 8 rights to privacy were engaged, and that they did suffer sufficiently serious damage.

An extremely important aspect of the case for data protection law is that Tugendhat held that that "damage" in section 13 of the Data Protection Act did not have to be financial loss; it can include non-pecuniary damage. If the case goes to appeal and his view is upheld, it could trigger a vast increase in data protection claims in England.

In the USA, the regulators have sanctioned Google Inc and it has had to pay US$17m to settle actions brought by consumers in relation to this issue. However, the claimants' lawyers submitted that Google Inc's past and current behaviour demonstrated that it had "institutionalised disregard for both the privacy of its billions of individual users and for the regulatory regimes of the countries in which it operates." Tugendhat J rejected Google Inc's contention that the "game would not be worth the candle".

Not surprisingly, Google Inc, which is registered in Delaware and has its principal place of business in California, has said it will appeal against the judgment.

Kate Macmillan, Partner, is a leading expert in misuse of private information, data protection and breach of confidence law in England.

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