Lloyd vs Google could become a seminal case in the future…or it maybe a false dawn. Without a shadow of a doubt it proves how seriously the Court of Appeal takes the fundamental right to privacy and data protection and regardless of how any appeal pans out, there will be a substantive hearing considering liability and, potentially, more importantly, quantum. Richard Cumbley, Georgina Kon and Julian Cunningham-Day of Linklaters set out the details behind the case and the critical legal aspects of it.
In short, a “workaround” that inserted tracking cookies without the users consent was found to be in breach of privacy laws and the representative action (a form of opt-out litigation) led to a claim on behalf of more than four million people with suggested compensation of £750 each – although this will be subject to much debate and assessment. This case and specifically the notion that “loss of control” without any pecuniary loss or distress, makes it very interesting and opens up the way for similar actions.
This extends not only to cases such as this where “workarounds” seem to have been engineered but will also potentially be valid in data loss cases where there is an obligation to notify individuals subject to the loss. As stated in the article “…here are likely to be representative actions brought against them, irrespective of their longer term merits, as a result of this decision.” This will lead to a greater focus and need for the investigation of the facts behind any privacy breach or data loss and is another reason, along with GDPR, why organisations must take these issues seriously and respond appropriately.
This case arose out of the “Safari Workaround” - essentially Google’s use of a technical workaround to bypass the cookie settings on the Safari browser and place tracking cookies without the individual’s knowledge or consent. This was a clear breach of privacy laws by Google which was fined by US regulators. Mr Lloyd launched a representative action against Google for this breach...[which] is important as it is a form of “opt-out” litigation - the claim is made on behalf of everyone who is a member of a particular class of claimant. This opt-out structure allowed Mr Lloyd to claim on behalf of more than 4 million affected individuals in England and Wales. This could lead to significant liability. Mr Lloyd suggested they should receive approximately £750 compensation each, which indicates a total liability for Google of up to £3 billion.