UK Supreme Court grants permission in part for Google to appeal in compensation case

The Supreme Court has granted Google permission to appeal in respect of two grounds of appeal in a claim for compensation for distress. This is the latest development, announced by the Supreme Court on 28th July, in the long-standing efforts of three individuals to bring proceedings against the Internet giant in the UK courts regarding the tracking and collation of their browser generated information via their Apple Safari browser (PL&B UK Report May 2015 p.1).

The grounds of appeal to be decided by the Supreme Court relate to the issue of whether compensation would be recoverable under the Data Protection Act 1998 (the “DP Act”) for any damage suffered as a result of a contravention by a data controller of any of the requirements of the DP Act, namely:

• whether section 13(2) of the DP Act is incompatible with Article 23 of the EU Data Protection Directive (95/46/EC); and
• whether section 13(2) of the DP Act should be disapplied on the grounds that it conflicts with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights.

This issue had needed to be determined as: “None of the Claimants alleges any pecuniary loss or other material damage. Their claims are for damages or compensation for distress.”

Two years after Vidal-Hall et al. commenced their underlying substantive claim, the Claimants must once again wait for their chance to seek justice.

However, the Supreme Court disputed Google’s assertion that the issue of whether the misuse of private information is a tort raised an arguable point of law for the purposes of service out of the jurisdiction. As such, this cause of action will retain the “correct legal label” bestowed on it by the Court of Appeal. For the Claimants, this means that regardless of the outcome of the Supreme Court appeal, their privacy claim will fall within the jurisdictional gateway for tortious claims and they will be permitted to effect service on Google in California. This will be a great relief to other Internet users seeking to remedy similar civil wrongs against overseas entities in the English courts.

By Emma Cross, Associate, Olswang LLP, London E-mail: emma.cross@olswang.com

See: https://www.supremecourt.uk/news/permission-to-appeal-decisions-28-july-2015.html