On 2 October 2019, the Court of Appeal handed down a unanimous decision allowing Richard Lloyd's representative action to proceed against Google LLC. Mr Lloyd seeks damages on behalf of a class of approximately 4.4 million iPhone users, alleging breaches of s.4(4) of the Data Protection Act 1998 (DPA) and claiming compensation under s.13. The claim, led by the finance and banking disputes team's James Oldnall, relates to what is known as the "Safari Workaround" - Google's allegedly unlawful and clandestine tracking of iPhone users in 2011 and 2012 without their consent using third party cookies. The claim is for compensation under the DPA in the form of an equal, standard, award or tariff for each member of the class to reflect the infringement of their right and the loss of control of their personal data, or, alternatively, for damages reflecting the value of the use to which the data were wrongfully put by Google. As Google is a Delaware corporation, Mr Lloyd had to apply for permission to serve the proceedings out of the jurisdiction.
The Court of Appeal's landmark decision confirms a number of important legal principles relevant to data protection and representative actions under CPR r19.6:
- An individual's personal data has an economic value and loss of control of that data can, in principle, constitute damage under s.13 of the DPA.
- In such cases, the Court can award a uniform per capita sum to members of the represented class for the loss of control of their personal data.
- Even if some individuals have suffered other harm such as distress, all individuals in the class lost control of their personal data and thereby suffered the same loss. They therefore share the "same interest" for the purposes of CPR 19.6(1).
- The Court recognised that this action would be "an unusual and innovative use of the representative procedure" but acknowledged that "this was the only way" to pursue this type of claim.
This decision is also significant for the representative action landscape more broadly. Representative actions have been very infrequent in this jurisdiction. They have also been brought on behalf of relatively small classes of people e.g. leaseholders in the same block of flats or a number of Lloyd's syndicates who had subscribed to a policy of insurance in relation to a vessel. This decision shows that the CPR 19.6 mechanism can be used to engage much larger groups affected by the actions of large corporates. In doing so, it has, in practical terms, established a new avenue to redress for consumers.