On the 10th of November 2021, the Supreme Court handed down their verdict in the case of Lloyd v Google LLC. The UKSC ruled in favour of Google, blocking the class action claim brought before them, meaning that there are no longer any grounds for appeal in this matter.
Richard Lloyd, a consumer rights activist and a former director of Which? Magazine, and the ‘Google You Owe Us’ campaign allege that during the period between June 2011 and February 2012, Google bypassed the default privacy settings on iPhones, obtaining personal information illegally. Google’s business model involves using personal data to help sell targeted advertisements, but the claimants allege that this is in breach of data protection laws. Legal action was launched in November of 2017, claiming that millions across England and Wales may be affected by this. In May 2018, this case was heard in the High Court, before Mr Justice Warby, who blocked the group litigation, but a Court of Appeal judgement allowed the case to continue.
The case was heard by the Supreme Court on the 28th and 29th April 2021 and, if successful, would have meant that millions of iPhone users would have been entitled to £750 each in compensation. At the time of the alleged breaches, the Data Protection Act of 1998 was in place, and these are the ground on which Lloyd brought to civil claim to court.
When giving the ruling, Lord Justice Leggatt said that the intention of giving damages to millions of iPhone users without any need to prove financial losses or mental distress was ‘unsustainable’. He said: ‘What gives the appearance of substance to the claim is the allegation that Google secretly tracked the internet activity of millions of Apple iPhone users for several months and used the data obtained for commercial purposes. But on analysis, the claimant is seeking to recover damages without attempting to prove that this allegation is true in the case of any individual for whom damages are claimed.’
However, the nature of this case as a representative action suit was problematic for its success. Each member of the class must have the ‘same interest’ in the claim, so the compensation sought for each must be the same, hence the £750 per capita claim. In order to argue the case, Lloyd had to frame the case in a ‘lowest common denominator’ way, meaning that his claim had to be that the damages were a ‘loss of control’. This was an element that proved fatal for the case. Had he decided to personally claim damages for distress under the old Data Protection Act 1998, or claim compensation for misuse of private information without needing to show any material damage, his chances of success may have been greater. However, he chose not to pursue either of those claims. The Supreme Court noted that establishing that all of the affected individuals had a legitimate and reasonable claim would require assessment of the situation of each individual member of the class. This is incompatible with the ‘same interest’ requirement. The Court also noted that a claim like this, relating to the Safari Workaround, would have been better off as a claim for misuse of private information. Also, in the claim that was brought to the Court, there would have been the issue of the distribution of the money.
The case has been interesting and the verdict in support of Google will no doubt have implications in the future of data handling and GDPR. Other major data protection class actions are also now likely reviewing their future and chances of success.
This controversial case has been hugely interesting, and the legal discourse surrounding its impact will certainly continue into future years.
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