Mass legal action against Google would ‘open floodgates’

LONDON: A billion-pound legal action against Google over claims it secretly tracked millions of iPhone users’ internet activity would “open the floodgates” to mass data protection claims if it is allowed to go ahead, the Supreme Court has heard.

Former Which? director Richard Lloyd, supported by campaign group Google You Owe Us, wants to bring a “representative action” against the US-based tech giant on behalf of around 4.4 million people in England and Wales. He claims Google “illegally misused the data of millions of iPhone users”, through the “clandestine tracking and collation” of information about internet usage on iPhones’ Safari browser, known as the “Safari workaround”.

Lloyd and Google You Owe Us hope to win between £1 billion and £3 billion in compensation for alleged breaches of the Data Protection Act. The High Court initially ruled that Lloyd could not serve the claim on Google outside the jurisdiction of England and Wales in October 2018, but that decision was overturned by the Court of Appeal in October 2019.

On Wednesday, Google’s lawyers said that landmark ruling could “open the floodgates” to vast claims brought on behalf of millions of people against companies responsible for handling people’s data.

Antony White QC told the Supreme Court that “a number of substantial representative actions have been commenced seeking compensation for breach of data protection rights” since the Court of Appeal’s judgment.

Claims “brought on behalf of hundreds of thousands, and, at least in one case, millions, of individuals” have recently been launched against Facebook, TikTok and Google-owned YouTube, the court heard.

White said, in written submissions, that allowing such claims to be brought could have “profound and far-reaching implications across all civil litigation”.

He argued that, under data protection laws, “compensation is only available for ‘damage’ suffered as a consequence of the (data) breach, and not for the breach itself”. White added that “the technical matters which gave rise to the ‘Safari workaround’ were rectified many years ago”.

He told the court: “In circumstances where the alleged breaches have long ago ceased and a remedy already exists for any financial loss or distress caused by those alleged breaches, there is no need to fashion any further remedy for individuals who have neither suffered any financial loss or distress nor experienced any ongoing infringement of their rights.”

White also said that “the true purpose” of Lloyd’s proposed claim was “to pursue a high-profile public campaign for ‘accountability’ against Google, rather than to obtain redress” for any data breaches.

He added: “The absence of any attempt on the part of any of the millions of class members to seek redress from Google is a telling reflection that the subject matter of the claim is not important to the individuals on whose behalf the claim is brought.”

Hugh Tomlinson QC, representing Lloyd, said in written submissions: “The fundamental question in this case is whether the courts can provide access to justice and, potentially, a remedy in cases where a very large number of people are affected by breaches of their data protection rights.”

Google You Owe Us and Lloyd claim Google bypassed privacy settings on Apple iPhone handsets between August 2011 and February 2012 and used the data gathered to divide people into categories for advertisers.

Google’s lawyers say there is no suggestion the so-called Safari workaround resulted in any information being disclosed to third parties. The hearing, which is being livestreamed on the Supreme Court’s website, is due to finish on Thursday afternoon and it is expected the court will give its ruling at a later date.