UK Court of Appeal finds for non-economic loss under EU data protection law

The UK Court of Appeal has upheld a decision against Google, relying upon the EU Charter of Rights to strike down UK legislation which limited the ability to sue for non-economic losses under EU data protection law.

The issue arose around the misuse of private information, whereby tailored online advertisements were being based on the claimants’ recently tracked data.  The claimants stated this was private information secretly tracked and collated from their Apple devices, and exploited via a mechanism on the Safari internet browser. Google had previously stated that the collection of such information does not occur unless Safari users give their consent.

The claimants were granted leave to serve proceedings outside the jurisdiction, asserting breaches under the Data Protection Act 1998 and the EU Data Protection Directive 95/46.  Google attempted to dismiss their out of jurisdiction leave to serve by arguing that claims of misuse of private information and breach of confidence were only equitable in nature, and procedural rules do not apply to claims which are not tortious. Google also argued that the claimants could not point to any particular loss or damage, which is required by the English Data Protection Act 1998.

The Court ultimately deemed that the misuse of private information is a tort as that is where its classification sits most naturally, and there was no satisfactory or principled answer to suggest otherwise.  On the issue of damages, the Court felt it would be strange if EU data protection law could not compensate those individuals whose data privacy had been invaded so as to cause them emotional distress but not pecuniary damage.

Leave to serve out of jurisdiction was indeed granted, although there is yet to be full trial on the substantive issues.

This judgement may have implications for the Irish case of Collins v FBD Insurance PLC, which was relied upon by Google. In that case, the Data Protection Commissioner found a breach of the Data Protection Acts by FBD when they used a private investigator to establish that the claimant had a criminal record. The High Court found for FBD on the issue of damages, deeming that the evidence of damage was so “imprecise and indefinite” that no provable damage had been suffered.

Click here to read Vidal Halls v Google Inc.

Click here to read Collins v FBD Insurance PLC.





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