Court dismisses application for compensation in representative class action over Google’s secret internet activity tracking via the Safari Workaround


Re: Lloyd v Google LLC [2018] EWHC 2599 (QB)

In this case it is alleged that there was a breach of duty under the Data Protection Act 1998 (DPA). The allegation is that over some months in 2011-2012 Google acted in breach of that duty by secretly tracking the internet activity of Apple iPhone users, collating and using the information it obtained by doing so, and then selling the accumulated data. The method by which Google was able to do this is generally referred to as “the Safari Workaround”. Mr Lloyd is the only named claimant, but sues in a representative capacity on behalf of a class of other residents of England and Wales who are also said to have been affected by the Safari Workaround in this jurisdiction. The claim is for “compensation” for “damage” under the DPA, s 13.

There is no dispute that 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 main issues raised by the application are: 1) whether the pleaded facts disclose any basis for claiming compensation under the DPA; 2) if so, whether the Court should or would permit the claim to continue as a representative action.

The Court dismissed the application concluding that 1) the facts alleged in the Particulars of Claim did not support the contention that Mr Lloyd or any of those whom he represents had suffered “damage” within the meaning of DPA, s 13; and/or 2) the Court would inevitably refuse to allow the claim to continue as a representative action because members of the Class did not have the “same interest” within the meaning of CPR 19.6(1) and/or it was impossible reliably to ascertain the members of the represented Class; and/or permission to continue the action in this form would be and is refused as a matter of discretion.

Edward Craven, Hugh Tomlinson QC and Antony White QC were involved in this case.