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UK High Court blocks compensation suit against Google’s ‘Safari workaround’

An attempt to bring a class-action style litigation in the UK to claim up to £3BN in compensation from Google for ignoring iPhone user privacy settings has been blocked after the High Court judge ruled the case cannot proceed.

The case pertains to actions by Google between 2011 and 2012 when it allegedly harvested personal data from Safari users without their permission, via the use of tracking cookies.

In the US, Google settled with the FTC over the same cookie tracking issuing — agreeing in 2012 to pay $22.5M to settle the charge that it bypassed Safari’s privacy settings to serve targeted ads to consumers.

In the UK a civil legal action was filed last year by one named iPhone user, Richard Lloyd — the former director of consumer group, Which? — who was seeking to represent millions of UK users, whose Safari settings the complaint alleged were similarly ignored by Google’s tracking technologies, via a representative legal action.

Lawyers for the claimants argued that sensitive personal data such as iPhone users’ political affiliation, sexual orientation, financial situation and more had been gathered by Google via a ‘Safari Workaround’ that operated between August 2011 and February 2012, and used for targeted advertising without their consent.

The suit sought compensation for Google’s improper use of people’s data — with a proposed amount of £750 per claimant, which could have resulted in a bill of up to £3BN for the company (based on representing ~4.4 million UK iPhone users).

While the judge did not disagree “it is arguable that Google’s alleged role in the collection, collation, and use of data obtained via the Safari Workaround was wrongful, and a breach of duty”, the ruling was based on legal questions related to the merit of the case’s compensation claims, and whether the court should allow a representative action in this case.

In a judgement issued today Mr Justice Warby ruled that the claimants had not been able to demonstrate a basis for bringing a compensation claim.

UK law in this area requires claimants to be able to demonstrate they suffered damage as a result of violation of the relevant data protection rules. And in this instance the claimants had not been able to show damage, the judge ruled.

“I do not believe that the authorities show that a person whose information has been acquired or used without consent invariably suffers compensatable harm, either by virtue of the wrong itself, or the interference with autonomy that it involves. Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party,” wrote Warby in the judgement, going on to state that “the question of whether or not damage has been sustained by an individual as a result of the non-consensual use of personal data about them must depend on the facts of the case”.

“The bare facts pleaded in this case, which are in no way individualised, do not in my judgment assert any case of harm to the value of any claimant’s right of autonomy that amounts to “damage” within the meaning of DPA s 13,” he concluded.

On a second legal point, the judge also ruled that the case would not have been allowed to proceed as a class-action style suit, asserting that “the essential requirements for a representative action are absent” — owing to individuals in the group not all having the “same interest” in the claim, and the difficulty of reliably defining a class for the purposes of this case.

In a statement after the ruling was announced, Google said: “The privacy and security of our users is extremely important to us. This claim is without merit, and we’re pleased the Court has dismissed it.”

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