GDPR, Class Actions and the Right to Compensation

Gavel, scales of justice and law books

In November 2018 we reported the decision of the English High Court in the case of Lloyd v Google [2018] EWHC 2599 (QB). In summary, Mr Lloyd, who is a consumer protection champion, was attempting to bring a ‘class action’ (or ‘representative’ action) against Google. He brought the claim on behalf of over 4 million Apple iPhone users, alleging that Google had secretly tracked some of their internet activity, for commercial purposes, between August 2011 and February 2012.

Because Google is based in Delaware in the USA, Mr Lloyd first had to seek permission from the High Court to serve the legal action outside the jurisdiction of the English courts. To do this he had to prove that the claim had a reasonable prospect of success. The High Court decided that the claim did not have a reasonable prospect of success for two reasons.

Firstly, none of the people in the represented class had suffered damage under S. 13 Data Protection Act 1998 (DPA). This provision contained a right to compensation which is now to be found in Article 82 of the General Data Protection Regulation (GDPR). The High Court took the view that the claimants seemed to be relying on the fact that they were entitled to be compensated because of the breach alone, without showing how the breach had caused any damage, which was a necessary requirement for the class action to proceed under section 13. Secondly, the members of the ‘class’ did not share the same interest and were not identifiable, which was also a necessary requirement.

On 2ndOctober 2019 the Court of Appeal, in Lloyd v Google  [2019] EWCA Civ 1599, reversed this decision and gave Mr Lloyd the right to proceed with his representative action against Google in the English Courts. This decision is significant because it now means that the claim against Google will be considered, at some future date, in the Media and Communications Court in London. It is also significant because of the Court’s ruling on the question of damages in respect of breaches of data protection legislation.

Why did the Court of Appeal reach this different decision?

The Court had to consider the following legal questions; Could the claimants recover damages for loss of control of their personal data under S. 13 of the DPA 1998? It decided, after reviewing various authorities from earlier case law and interpreting the DPA 1998 by reference to agreed principles of European Union Law, that they could.

The Court of Appeal’s approach was quite different to that of the High Court. The latter had rejected Mr Lloyds’ argument that the claimants were entitled to compensation because of the breach alone.  It stated that it was necessary for a claimant to demonstrate a causal link between the breach of the DPA and the damage suffered, and they had not.

In reversing the decision, the Court of Appeal emphasised that S. 13 of the DPA had to be interpreted in the light of Article 13 of the Data Protection Directive 1995and Article 8 of the Charter of Fundamental Rights of the European Union.  It also referred to the General Data Protection Regulation 2016. In particular, the Court considered GDPR ***Recital 85 which supports the view that “loss of control” over personal data is an example of the kind of “physical, material or non-material damage that might be caused to natural persons as a result of a data breach”. On this basis, the Court of Appeal accepted that a claimant could claim damages in respect of ‘loss of control’ of their personal data, provide the damage was not trivial. On the facts, the Court considered that ‘browser generated information’ (BGI) was an asset that had commercial value. Consequently, a person’s control over their BGI does have a value so that the loss of control must also have a value.  Therefore, the loss of control damages claimed by the represented claimants are properly to be regarded as compensatory in nature and damages are in principle capable of being awarded for loss of control of data under Article 23 and S. 13 DPA 1998 even if there is no pecuniary loss and no distress.

(***It is interesting that the Court of Appeal considered the recitals to interpret the substantive provisions of GDPR. These recitals are often difficult to match with the latter. Our GDPR Handbook does this for you as well as cross referencing relevant ICO Guidance and the Data Protection Act 2018.)

Turning to the second legal question that had to be considered by the Court of Appeal; was the High Court judge right to hold that the members of the class did not have the same interest under and were not identifiable? According to the Civil Procedure Rules it is necessary for the claimants in a class action, to all have ‘the same interest’ in the claim. The High Court decided that the claimants did not all have the same interest; some affected individuals would be heavy internet users and ‘victims’ of multiple breaches; the extent of the loss of control across such a large group would be varied; and not all users would view the loss of control in the same way.

The Court of Appeal decided that this was the wrong approach. The claimants that Mr Lloyd seeks to represent have all had their BGI (something of value) taken and used by Google, without their consent, in the same circumstances and over the same period. Accordingly, they are all victims of the same alleged wrong, and have all sustained the same loss, namely loss of control over their BGI. The Court accepted that this means that the damages that can be claimed (if the future action is successful) will be at the lowest common denominator.

The Court of Appeal also decided that it would be possible to identify the class of people represented in this claim. It must be possible tosay of any particular person whether or not they qualify for membership of the represented class of persons by virtue of having” the same interest as Mr Lloyd” at all stages of the proceedings. The Court considered that every affected person will, in theory, know whether he or she satisfies the conditions that Mr Lloyd had specified. These included any person who between 9 August 2011 and 15 February 2013 (whilst they were present in England and Wales)

  • Had an Apple ID
  • Owned an iPhone 3G or subsequent model running iOS version 4.2.1 or later; and
  • Used the Apple Safari internet browser version 5.0 or later on that iPhone to access a website that was participating in Google’s DoubleClick advertising service

In any event, the Court recognised that Google would have the data to be able to identify every person in the class!

Conclusion

In this case the Court of Appeal reversed the High Court’s decision that Mr Lloyd could not serve an out of jurisdiction action against Google. It approached the case by interpreting the now repealed Data Protection Act, in the light of principles of EU Law. The way is now clear for this class action to proceed before the Media and Communications Court in London. It of course remains to be seen how the case will proceed and no doubt it will be fought hard by Google, given the size of the class.  It is also difficult to predict how the Media and Communications Court will approach the case if it takes place post Brexit.

Readers may also wonder why the case is relevant given that the applicable law is now the GDPR. However, the Court of Appeal seemed to be at pains to point out that the GDPR supports its interpretation in this case. The significance lies in the fact that the Court of Appeal has made it clear, that in its view, it is possible to claim damages for loss of control of personal data (including BGI data) without having to prove financial loss or distress.

You can find more on these and other developments in our GDPR update workshop running in Leeds and London in November.

Reflections of an Act Now FOI Trainer

People in a meeting

Susan Wolf writes…

They say time flies when you are having fun. Well, I must have been having fun because I can’t quite believe I have been training with Act Now for over 12 months. Really where has the time gone? During my time at the University of Northumbria I developed the habit of keeping a journal in which I reflected on my teaching. Old habits die hard and I have continued this practice now that I am a regular Act Now training consultant. Looking back over my journal for the last 12 months a number of common themes became apparent. I thought it might be interesting to share these. However before I do, I just want to thank all the delegates I have met for challenging me, keeping me on my toes and reminding me how interesting life can be in Freedom of Information Land.

Training practitioners is not something new to me. For over 11 years I taught FOI practitioners on the Northumbria University LLM in Information Rights Law & Practice Degree. However, the Act Now courses, with their focus on practical training have exposed me to a wider range of people, from a wide range of public sector organisations, all trying to get to grips with broadly similar issues. From the most experienced practitioner who wants a ‘top up course’ to the absolute beginner who has just landed their first job in information rights, all practitioners appear to share some common concerns and worries.

There are also some widely shared misconceptions which still seem to cause the odd debate, despite the Freedom of Information Act 2000 being almost 15 years old. For instance, I have heard some delegates say that the ‘clock start’s ticking’ on a FOI request on the day it is received by a public authority. I have also heard delegates talk about fines that the ICO can impose for breaches of the Freedom of Information Act. Those are always good to correct, and it is nice to hear the sigh of relief when they are advised correctly on these points.

However, I also frequently get asked questions that there are, quite simply, no definitive answers to. In good ‘lawyer’ tradition I could say ‘well that depends’ but that isn’t always what people want to hear. For example, I have been asked questions about how far a public authority must go in advising and assisting an applicant, or how many times they need to go back to the applicant to clarify a tricky request. Another question that taxes people is how long it is reasonable to wait between requests before engaging S. 14 (2) for repeated requests. These are always good for some discussion, but often time is limited on a one-day course, particularly when delegates quite rightly expect we cover all the course content.

Other misconceptions or worries centre on issues relating to the redaction of staff names in email correspondence; how to distinguish between ‘business as usual’ questions and FOI requests; or the significance of ‘confidentiality’ markings on information provided by third party contractors. The ‘new’ Freedom of Information 2018 Code of Practice addresses some of these issues. However not all FOI practitioners are necessarily aware of the provisions of the new Code. Of course, it is difficult for practitioners, who are undoubtedly over-burdened, to keep up to date and on top of things, or indeed for us to cover these issues in detail in a one-day course. One way of keeping up to date is to read our Act Now blogs, which are all written by Act Now consultants and which deal with new developments and case law. However, this journey of reflection has made me realise that it would be useful to write some ‘Back to Basics’ blogs that address some of the issues and concerns that I know FOI practitioners share. Over the coming months we will be publishing a series of ‘FOI Basics Blogs’ on the issues raised during our one-day FOI courses starting with a blog on ‘Business as Usual or FOI Request’?

For those FOI practitioners who want to take their training and understanding to the next level, Act Now Training now offer a 4-day FOI Practitioner Certificate this course is modelled on the highly successful GDPR Practitioner Certificate and was launched in May 2019. We have now delivered it seven times and it is absolutely clear this model enables FOI practitioners to develop a more detailed knowledge and understanding of the FOI in practice. It gives delegates the chance to explore the exemptions in far more detail over two days, with Day 3 focussing on the most frequently used exemptions, including Sections 40 and 43. The course also prepares delegates for writing a Refusal Notice which forms part of the final assessment.

Delegates have given very positive feedback:

“The course was very well structured and well timed. The length of the course was ideal as this gave sufficient time to discuss all areas relating to FOI and also gave candidates ample time for discussion and study. The trainer was very supportive and the knowledge that has been imparted has enabled me to develop the FOI function with our organisation. Highly Recommended.”
JW, Heywood Middleton and Rochdale NHS

“The course was excellent and really sets you up for the exam, I would recommend it to others working in the field. I have put what I learned on the course to good use as I am a FOI and DPA Manager in a very busy post with lots of business each and every day; many of the requests are unusual. The course and now passing the exam have given me the confidence to do my job.”
JH, NI Courts and Tribunals Service

“Thank you for a great course – as always all the trainers at Act Now are extremely knowledgeable, approachable and make the learning experience really enjoyable.”
KF, St Helens Council

As you can see Delegates are enjoying the course content and delivery style. Most importantly they are able to take away their gained knowledge and apply it to their everyday role with confidence. After all, that is the purpose and objective of a course such as this. It makes me immensely proud and pleased to be able to be a part of the team that helps delegates in this way everyday and I look forward to the next 12 months.

Susan Wolf is a trainer for Act Now Training. She has over ten years experience teaching information rights practitioners on the LLM Information Rights Law & Practice at Northumbria University. All our trainers are available to deliver customised in house training, health checks and audits. Please read the testimonials from satisfied clients and get in touch for a quote.

Google v CNIL and the Right to be Forgotten

AdobeStock_283633546_Editorial_Use_Only.jpeg

24th September 2019 is most likely to be remembered as the day the UK Supreme Court unanimously ruled that the Prime Minister, Boris Johnson, had unlawfully prorogued Parliament. As media attention focussed on the constitutional implications of this landmark judgment, you might be forgiven for not noticing another very important legal judgment delivered by the Court of Justice of the European Union (CJEU) in (Google LLC v CNIL (Case C-507/17). In contrast to the Prime Minister, the case went in favour of Google and provided clarification regarding the extent of its obligations to erase personal data under Article 17 of GDPR, the so called “Right to be Forgotten.”

This decision is, in many senses, a continuation of the Court’s landmark judgment in 2014 (Google v Spain (Case C-131/12) in which the CJEU ruled that Google, as a Data Controller, had to give effect to the data protection right of erasure provided in Article 12(b) and the right of objection under Article 14 of the EU Data Protection Directive 1995 (the 1995 Directive). Readers will know that the Directive has been repealed and replaced by the GDPR. Although, at the time of the case the operative law was the Directive, the Court decided that it would consider the questions raised in the light of both the Directive and the GDPR to ensure that its answers would be of relevance now that the GDPR is in force.

The Right to be Forgotten (or the right to erasure) is now found in Article 17 and the right to object to processing in Article 21 of GDPR. In Google v Spain the Court held that where a search engine operator received a request under Article 12 (b) of the 1995 Directive then it would have to take steps to remove those links to third party web sites that were displayed in a list in a search conducted against the Data Subject’s name (provided the conditions of Article 12 (b) were met). This meant that a Data Subject would have the right to request Google to ‘de-reference’ certain links to information held on third party web sites. This has been referred to as the “right to
de-referencing”. This right was not absolute.

Turning to the corresponding provisions of the GDPR (Article 17), the Court also notes that the Right to be Forgotten under Article 17 (3) of the GDPR is also not absolute.
A search engine operator may refuse the request if one of the conditions in Article 17(3) applies. Article 17 (3) specifically states that the Right to be Forgotten does not apply where processing is necessary for exercising the right of freedom of expression and information. Therefore consideration needs to be given to the specific circumstances of the case, the sensitivity of the personal data, and the interests of the public in having that information, which may vary depending on the public role played by the Data Subject.

What happened in the latest case?

In 2015 the French Data Protection Authority (the Commission National De l’informatique Et Des Libertés) instructed Google that when it received a request from a person to remove links to web pages about them, from the list of results displayed following a search conducted on the basis of that person’s name, it must apply that removal to all its search engine’s domain name extensions.

Google responded by removing the links in question but only from the results displayed following searches conducted from the Google domain names in the Member States. It also implemented so called ‘geo-blocking’ measures that meant if an internet user in the EU switched to a non-EU version of Google it would automatically be re-routed to an EU version of Google (which would not display the ‘disputed’ links). Despite this the French Data Protection Authority, using its powers under the French law that implemented the Data Protection Directive, imposed a fine of €100,000 on Google. Google challenged this decision. The French Court considered that the case raised difficult legal issues regarding the interpretation of the Right to be Forgotten and the territorial scope of the Data Controller’s obligation.

The Issues

The issue in this case was about what steps Google had to take in response to a request to de-reference links. Did it have to ensure that the link was removed from all the domain names used by its search engine so that the links no longer appear, irrespective of the place where the search is initiated or whether it is conducted from a place outside the European Union? In other words the issue was about the territorial scope of Google’s obligations to de-reference links when a Data Subject makes a valid request under Article 17.

The Court deals with this as follows:

  • It begins by stating that the objective of the GDPR is to provide a high level of protection of personal data throughout the European Union, and a
    de-referencing of all versions of a such engine would achieve that objective.
  • But it recognises the ‘ubiquitous’ nature of the internet that is global in reach and without borders.
  • And it also acknowledges that not all States that host the Google search engine recognise the right of de-referencing.
  • Article 17 (3) strikes a balance between the rights of the Data Subject and the right of information, but does not strike such a balance as regards the scope of de-referencing outside the EU.
  • There is nothing in Article 17 of the GDPR that suggests that the EU intended that the scope of the Right to be Forgotten would extend beyond the territory of the Member States of the EU.
  • Consequently there is no obligation under EU Law, for a search engine operator, who grants a request for de-referencing, under Article 17, to carry out a de-referencing on all the versions of its search engine. It is only required to implement de-referencing in all the EU Member State versions of its search engine.
  • However, where necessary the search engine operator is obliged to use measures which prevent, or at the very least, seriously discourage internet users in the EU from gaining access to the ‘offending’ links in question.

The CJEU then referred the matter back to the French Courts for them to determine whether the measures taken by Google (the geo-blocking measures) or proposed by Google meet these requirements. However, what is clear is that the ‘Right to be Forgotten’ in the context of Google searches has its limits. The extent to which Google, and other search engine operators, can prevent or discourage determined internet users from gaining access to ‘de-referenced’ personal data remains to be seen.

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

Cyber Security Month is Here!

Cyber security concept, authentication screen on computer, confidential business data

October is European Cyber Security Month. This is the EU’s annual awareness campaign that takes place each October across Europe. The aim is to raise awareness of cybersecurity threats, promote cybersecurity among citizens and organisations; and provide resources for online protection, through education and sharing of good practice.

Every single day the cyber security landscape becomes more complicated. Criminals are continually inventing new ways to carry out cyber-attacks. A Freedom of Information  request by insurance broker Gallagher, recently revealed that UK councils were fending off an average of 800 cyber attacks per hour.

Organisations that do not take appropriate action are at grave risk of business disruption, reputational damage and regulatory action. In July we saw the Information Commissioner’s Office (ICO) signal its intention to use its powers to issue Monetary Penalty Notices (fines) under the General Data Protection Regulation (GDPR). Two Notices of Intent were issued against British Airways and Marriot International respectively.  Both relate to cyber security incidents but for different reasons and amounts. (More here.)

Cyber security needs to become a top priority for organisations and individuals. Training and awareness is crucial. The National Cyber Security Centre publishes a regular report on cyber incident trends in the UK with guidance on how to defend against and recover from them. Act Now is running a series of  Cyber Security workshops led by cyber expert, Steven Cockcroft. The first one was in London last week and attracted delegates from both the public and private sectors. Habib Khatib, Head of Operations at Talk Direct Talk Direct (Leeds) Ltd, said:

“This was an excellent workshop which really opened my eyes to the threats that organisations face from cyber criminals. Steve’s expert knowledge will help me to implement a cyber action plan within my company.”

To celebrate Cyber Security month, all new delegates booking on a Cyber Security workshop will received a discount of 10% if they quote the reference “OCTOBER10%”. This offer applies until 11.59pm on 31st October 2019. A day to remember for more than one reason!

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

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