The Supreme Court will this week (28 April) hear a key case on the approach to compensation claims arising out of data breaches.
According to 11KBW, the case of Google LLC v Lloyd raises two issues:
- Is it legitimate to bring a single-claimant ‘representative’ action on behalf of the entirety of an affected class in a data breach, rather than the more usual group litigation?
- Can (alleged) victims of a data breach bring claims for ‘loss of control’ damages under data protection legislation (following the Court of Appeal’s decision in the context of misuse of private information in Gulati v Mirror Group Newspapers), in circumstances in which such victims have suffered no financial loss or distress?
11KBW said: “These issues are of huge potential significance for the future of UK data protection mass claims, and indeed data protection compensation claims more generally.”
The case will be heard by a Supreme Court panel comprising Lord Reed, Lady Arden, Lord Sales, Lord Leggatt and Lord Burrows.
The background to the case is that the respondent issued a claim alleging that the appellant, Google, had breached its duties as a data controller under the DPA to over 4m Apple iPhone users during a period of some months in 2011- 2012, when Google was able to collect and use their browser generated information.
The respondent sued on his own behalf and on behalf of a class of other residents in England and Wales whose data was collected in this way. He applied for permission to serve the claim out of the jurisdiction.
Google opposed the application on the grounds that (i) the pleaded facts did not disclose any basis for claiming compensation under the DPA and (ii) the court should not in any event permit the claim to continue as a representative action.
11KBW’s Robin Hopkins and Rupert Paines (with Lord Anderson of Ipswich KBE QC from Brick Court Chambers) act for two of the interveners in the appeal, the Association of the British Pharmaceutical Industry and the Association of British Healthtech Industries. They are instructed by Kenny Henderson of CMS Cameron McKenna Nabarro Olswang LLP.
Christopher Knight of 11KBW (unled) acts for a further intervener in the appeal, the Internet Association, representing a wide array of technology companies, instructed by Harriet Ellis of Linklaters LLP.