Surfing through your Right to Privacy

The Court of Appeal recently gave Judgment in Vidal-Hall v Google [2014] EWHC 13 (QB) and decided important principles in matters involving the misuse of private information.

The Claimants in this case were individuals who had used the internet on their computers through their Apple Safari browser.  Unbeknownst to the Claimants, and contrary to the Defendant’s publicly stated position, the Defendant collected private information about the Claimants’ internet usage without consent.  The information collected was then utilised as part of a commercial offering to advertisers which allowed them to tailor their advertisements to suit the interests of the Claimants.

The Claimants brought a claim for damages pursuant to the misuse of their private information and for breach of section 13 of the Data Protection Act 1998 (‘DPA’).  Given that the Defendant was domiciled in California, USA it was necessary for the Court’s permission to be obtained before proceedings could be served.

The Claimants argued that their claims fell under the ‘injunction’ and ‘tort’ gateways in CPR PD 6B paras 3.1(2) and 3.1(9) for the claims for misuse of private information and for breach of confidence; and on the ‘injunction’ gateway in respect of the claim under the DPA.

Since October 2000 when the Human Rights Act 1998 (‘HRA’) came into force, the courts have been tasked with affording appropriate protection to ‘privacy rights’ under article 8 of the Convention in the absence of a common law tort of invasion of privacy.  The requirements of the HRA have been accommodated through the development of confidentiality laws to protect the misuse of private information.

In the present case, the Defendant argued that the asserted misuse of private information was not a tort and that in cases where it has been referred to as a tort, classification or nomenclature was not in issue. Whilst the Defendant’s argument in relation to the commentary in earlier decisions was correct, the Court of Appeal held that the earlier references could not ‘be dismissed as a mere loose use of language; they connote an acknowledgement, even if only implicitly, of the true nature of the cause of action’.

The Court of Appeal ultimately ruled in favour of classifying the cause of action as a tort and held:

‘…we cannot find any satisfactory or principled answer to the question why misuse of private information should not be categorised as a tort for the purposes of service out of the jurisdiction. Misuse of private information is a civil wrong without any equitable characteristics. We do not need to attempt to define a tort here. But if one puts aside the circumstances of its “birth”, there is nothing in the nature of the claim itself to suggest that the more natural classification of it as a tort is wrong.’

The Claimants second claim required analysis of the DPA which was intended to implement Directive 95/46/EC (“the Directive”) which is a directive aimed at safeguarding privacy rights in the context of data-management.

The Defendant argued that the Claimants were prevented from claiming pursuant to a breach of the DPA because they had suffered non-pecuniary loss.  The Court of Appeal considered article 23 of the Directive which does not distinguish between pecuniary and non-pecuniary damage and held that ‘there is no linguistic reason to interpret the word “damage” in article 23 as being restricted to pecuniary damage. More importantly, for the reasons we have given such a restrictive interpretation would substantially undermine the objective of the Directive which is to protect the right to privacy of individuals with respect to the processing of their personal data.’

In conclusion, the Claimants were ultimately successful in establishing that their primary cause of action could properly be categorised as a Tort and that in accordance with Article 23, they had a valid claim for distress pursuant to the asserted breach of the DPA. As such, the important issues surrounding an individual’s right to privacy when surfing the internet shall now be heard in an English court and the ultimate decision will no doubt be eagerly awaited.

Co- Authors – Katie Wilkinson & Thomas Wheeler

June 2015

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