Google has been given leave to appeal a decision that users can claim damages for a breach of the UK Data Protection Act (DPA).
The Supreme Court in the UK ruled on Tuesday that the Google v. Vidal-Hall case, referred to by IAPP VP of Research and Education Omer Tene as the "European Privacy Judicial Decision of a Decade," can go back to court yet again. Among other things, the Supreme Court has given Google permission to appeal "whether the Court of Appeal was right to hold the Claimant's claims for misuse of private information are claims made in tort for the purposes of the rules relating to service out of the jurisdiction."
This long-fought battle centres around the Google’s collection of so-called browser-generated information (BGI) without consent. The claimants say that Google illegally tracked their activity on Apple’s Safari browser through cookies they had given no permission for. That BGI was then used to generate advertising for the search engine's DoubleClick customers. On Monday, Google announced a related policy change around cookies and DoubleClick, but this case centers around Internet usage in 2011-2012.
The big issue now is whether the claimants can be awarded damages for "distress" despite there being no pecuniary loss. This distress was caused by the fact that the adverts displayed as a result of their browsing history revealed personal information about the claimants and may have been seen by a third party.
Google said that such activity could not be conducted for Safari users unless they had expressly allowed it to happen, but the Court of Appeal of England and Wales said the claimants were entitled to compensation.
But this is where it gets tricky. Section 13(2) of the UK Data Protection Act 1998 deals with damage and might not have given the claimants grounds for compensation. This law is supposed to be compatible with the EU Data Protection Directive, but the Court of Appeal found it was not and, furthermore, also conflicted with the right to private and family life and the right to protection of personal data as enshrined in the EU Charter of Fundamental Rights. It therefore set aside section 13(2) of the DPA and found in favour of Vidal-Hall et al.
The world will now find out once and for all whether the Court of Appeal "was right to disapply section 13(2) of the Data Protection Act 1998 on the grounds that it conflicts with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights."
So get out the popcorn, legal watchers, because the UK's highest court may finally establish a privacy tort, something that would be nearly 20 years in the making.
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