Mass legal action against Google would ‘open the floodgates’, Supreme Court told

The Supreme Court
Support us and go ad-free

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’s allowed to go ahead, the Supreme Court has heard.

Open the floodgates

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 £1bn and £3bn in compensation for alleged breaches of the Data Protection Act.

Phone app stock

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.

Read on...

Support us and go ad-free

On 28 April, 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.

“Profound and far-reaching”

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.

Harvesting users

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.

Tomlinson added that the millions of proposed claimants “will not have access to justice” if Lloyd’s claim was not allowed to go ahead. He said “data is now central to the operation of the post-industrial economy”, and that “the foundation of (Google’s) business is trading in the personal data of its users”.

Tomlinson also said personal data is “a valuable asset” to Google, “as demonstrated by the fact that the appellant in fact exploited the data for its own economic advantage”.

He argued that “the existing state of society with the mass trade in personal data requires the court to adapt its practice and course of proceedings to allow the victims of large-scale data breaches access to remedies”.

Tomlinson said doing so would provide the proposed claimants represented by Lloyd “with access to justice and a remedy which would otherwise be entirely absent”.

Divide and categorise

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.

They say “browser-generated information” collected by Google included racial or ethnic origin, physical and mental heath, political affiliations or opinions, sexual interests, and social class.

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 29 April and it’s expected the court will give its ruling at a later date.

Support us and go ad-free

We need your help to keep speaking the truth

Every story that you have come to us with; each injustice you have asked us to investigate; every campaign we have fought; each of your unheard voices we amplified; we do this for you. We are making a difference on your behalf.

Our fight is your fight. You’ve supported our collective struggle every time you gave us a like; and every time you shared our work across social media. Now we need you to support us with a monthly donation.

We have published nearly 2,000 articles and over 50 films in 2021. And we want to do this and more in 2022 but we don’t have enough money to go on at this pace. So, if you value our work and want us to continue then please join us and be part of The Canary family.

In return, you get:

* Advert free reading experience
* Quarterly group video call with the Editor-in-Chief
* Behind the scenes monthly e-newsletter
* 20% discount in our shop

Almost all of our spending goes to the people who make The Canary’s content. So your contribution directly supports our writers and enables us to continue to do what we do: speaking truth, powered by you. We have weathered many attempts to shut us down and silence our vital opposition to an increasingly fascist government and right-wing mainstream media.

With your help we can continue:

* Holding political and state power to account
* Advocating for the people the system marginalises
* Being a media outlet that upholds the highest standards
* Campaigning on the issues others won’t
* Putting your lives central to everything we do

We are a drop of truth in an ocean of deceit. But we can’t do this without your support. So please, can you help us continue the fight?

The Canary Support us