Lloyd v Google – Supreme Court to deliver judgment tomorrow (on 10 November 2021) – a reminder of the issues at stake

It has been confirmed that the Supreme court will hand down its judgment in Lloyd v Google tomorrow: Future judgments - The Supreme Court

This is a highly important case in the context of data protection, privacy and information law litigation. Charles Russell Speechlys will be providing its expert commentary and analysis as soon as possible after the judgment is released.

In anticipation of the judgment being released, this a brief re-cap of the issues and why they are important:

• This case will provide vital guidance on when damages can be awarded for infringement of data protection law.
• The case involves Google’s “Safari work-around” (from a few years ago) which enabled Google to place cookies on users’ devices in order to place advertisements based on the user’s browsing history, even when the Safari browser was set to block third party cookies. As such, Google’s actions were an infringement of data protection law (particularly the rules around requiring consent to the placement of non-essential cookies).
• Mr Lloyd alleged such infringement and claimed compensation (on his own behalf, but also as a ‘representative action’ on behalf of 5 million + unidentified individuals who were affected by the work-around). Whilst the claim was brought under the DPA 1998, as is the case with the UK GDPR / DPA 2018, Mr Lloyd was able to take advantage of the fact that claims for “material and non-material” damage are permitted, i.e. he didn’t need to show a pecuniary loss.
• Because the case was brought as a representative action, Mr Lloyd could not however claim compensation in respect of specific damage (as it was impossible to detail how 5 million + individuals may have been affected – i.e. they wouldn’t have all suffered the same levels of distress – and in a representative action, the class members must have a common interest), so instead he claimed for loss of control of the data itself.
• The claim was dismissed in the High Court but allowed on appeal. Google were granted leave to appeal to the Supreme Court and the hearing was earlier this year. It is this substantive Supreme Court judgment that will be delivered on 10 November 2021.
• If Mr Lloyd is successful it will mean that damages may, in principle, be awarded for loss of control of data without a claimant having to show any distress or non-pecuniary loss. This may make bringing proceedings for infringement of data protection law far easier for claimants, who will no longer need to demonstrate their hurt feelings or distress.

Look out for our update later this week!