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Google's appeal in a landmark data protection case begins in the Supreme Court

Posted on 28 April 2021

On 28 and 29 April the Supreme Court will hear Google's appeal in the landmark data protection case of Lloyd v Google LLC, arising from Google's "Safari Workaround" in 2011 and 2012.

At issue will be what appears to be the simple and preliminary application by the claimant, Richard Lloyd, for permission to serve proceedings “out of the jurisdiction”, on Google’s US-headquartered company. But in reality, several other issues will need to be determined.  These boil down to: what is the meaning of the word “damage” in data protection law? And in what circumstances can one representative bring a massive group damages claim against a defendant when each member of the class of claimants may have had their rights infringed in differing ways and to different degrees?

On the answers to these questions depends the future of a significant number of other proposed massive representative claims against other huge technology firms (for instance, claims against TikTok, Facebook, Oracle and Salesforce).

In the original High Court proceedings Google was successful in defending the claim, but, subsequently, the Court of Appeal overwhelmingly overturned the decision, in favour of Mr Lloyd. In doing so, the Court confirmed that, in principle, claims could be brought for what is known as "loss of control" of personal data.

Adam Rose, head of Mishcon de Reya's data practice, says:

"The Supreme Court is going to have to decide on some of the most crucial issues for individuals and their data rights, and that will have an enormous impact on businesses' obligations and liabilities. Mr Lloyd says that Google should compensate the millions of people who unlawfully received cookies back in 2011 and 2012, when using an iPhone to browse the internet. For its part, Google says that this shouldn't warrant compensation, and that, in any case, not every person in the millions of potential claimants can be said to have suffered the same 'damage'. If Mr Lloyd wins, we will inevitably see a large number of related 'loss of control' claims being brought against some of the world's largest technology companies. If Google wins, it may become much harder for individuals to get redress for an infringement of their rights.

"Lawyers are watching this case closely, but its implications mean that everyone should be paying attention."

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