Lloyd v Google LLC [2021] UKSC 50 (10 November 2021)
Citation:Lloyd v Google LLC [2021] UKSC 50 (10 November 2021).
Subjects invoked: 37. 'Privacy'.13. 'Remedies'.12. 'Procedure'.
Rule of thumb:Can you be signed up to a class action without your knowledge or consent, with damages obtained for you in your absence, and you possessing a right to collect the damages at a later date? No. The Court in this case affirmed that if someone, like Google, is storing & using a person’s data without their consent, then this indeed is a blatant breach of privacy law entitling a person to damages. The Court did however state due to the remedies principle of specification, a person has to fully explain who they are, what losses they have suffered etc, before damages can be awarded by a Court. Google doing this to people did not automatically entitle anyone to damages.
Background facts:
This case invoked privacy law, procedure and remedies. The
Google operated an internet explorer app on I-phones called ‘Google Safari’ – a person clicked on and they were at a Google search engine ready to explore internet websites. However, Safari tracked absolutely everything that people did on the internet on every website, & used it to tailor advertising to them on every site they visited. Safari was not supposed to do this – it was only supposed to be allowed to track what people did in their search engine, & advertise there, not the websites of other organisations. Google were only able to do this for around 6 months from August 2011-February 2012 before Apple caught them and put a stop to it.
Class actions in the UK are not allowed in the field of privacy law. However, Mr Lloyd tried to argue the ‘connected interest’/’same interest’ principle applied, where people with materially similar facts of cases can all raise their case in the same action. Lloyd estimated that around 4 million in England people used the Safari app and had their internet activity data taken by Google without their permission in this blatant breach of privacy law by Google. Lloyd did not contact any of them, and obtain details about their case, but still sought to obtain £750 for all 4 million people, meaning he was seeking £3 billion in damages from Google. Google were a company based in the state of Delaware in the USA. Before a Court action can be fully served on a foreign company the UK Courts have to authorise this. Google argued that this action could not be served on them because it did not have ‘a reasonable prospect of success’, and so the matter proceeded to Court.
Lloyd made 2 arguments to support his position to obtain the £3 billion in damages from Google. Firstly, as touched upon above, Lloyd argued that although the class action system was not in place for privacy law, all the 4 million claimants had a ‘connected interest’/’same interest’ in the case, meaning that they could all be raised at the same time. Secondly, Lloyd made such an ‘innovative’ argument that had basically never been made in a UK Court before, it is hard to name it. Lloyd argued that damages for what Google did not have to be tailored, rather they were standardised and the same for absolutely everyone. He argued that all 4 million people suffered the exact same damage of ‘loss of control of data’, without actually suffering any other harm, which entitled them to £750 each. He further argued that Google should transfer him the £750 for all 4 million people, totalling 3 billion, and he would then advertise for people to apply to him to get their £750.
Google made 2 fundamental arguments against Lloyd being entitled to £3 billion damages from them. Firstly, Google argued that the standardised damages of £750 for loss of control of data was absolute nonsense and not grounded in any legitimate legal principle. Google argued instead that the legal principle of ‘specification’ applied. It was argued that specification was a fundamental principle of the law of remedies, which meant one person had to explain the details of their case - who they were, how long they used the app, how it affected them, how Google profited etc - before a Court could be within their rights to order another person to pay them damages. In short, Google argued the fundamental point that if a person does not ‘specifically’ explain how they suffered loss, then another party does not have to pay damages. Secondly, Google argued that as there was no basic specification of the people or the damages for everyone in the ‘same interest’/connected interest action, Lloyd’s case had no reasonable prospect of success. Google therefore argued that the Court should not allow Lloyd to serve his legal action upon their headquarters in Delaware.
Judgment:
The Court upheld the arguments of Google in this matter. Lloyd’s attempts to create a new legal principle were unsuccessful. The Court affirmed that there was no availability of class actions in privacy law, and in ‘same interest’/’connected interest’ proceedings the principle of specification of damages did indeed apply, meaning that the names of all 4 million people and how they suffered loss or damage would have to be explained before the Court could award them all damages. The Court affirmed that Lloyd’s £3 billion action did not have a ‘reasonable prospect of success’, and he was not granted permission to serve it on Google in Delaware.
(This case did open up the possibility for a potential sea of claims against Google to be raised in the future however. The 4 million people who between August 2011 and February 2012 had an I-Phone and used the Safari app to access the internet could raise a claim against Google for around “£1,500” or so. If they could argue that knowledge of this privacy breach had caused them ‘distress’ (perhaps argue that it caused cynicism about the morals of big business and loss of societal trust?!) and also value how much 3 months of browsing history was worth, they could probably get damages awarded to them by the UK Courts)
Ratio-decidendi:
‘without attempting to show that any wrongful use was made by Google of personal data… or that the individual suffered any material damage or distress… without proof of these matters, a claim for damages cannot succeed’, Lord Leggatt at 159
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.