Landmark UK Decision Recognises Misuse Of Private Information As A Tort

Thursday 30 April 2015 @ 11.41 a.m. | Legal Research

Last month, the English Court of Appeal released a landmark judgment in which they concluded that misuse of private information should be recognised as a separate tort.  The case involves a number of English claimants who claim that Google circumvented their privacy settings in Apple’s Safari browser to collect information through cookies between 2011 and 2012.  Google used this information as part of its offering to advertisers, which would allow them to target particular advertisements to the claimants depending on their interests.  This was also contrary to Google’s publicly stated position that they could not track Safari users unless they opted in.  The claimants are arguing that this is a misuse of personal information that breaches the Data Protection Act 1998 (UK). (Google has already been subject to penalties by the US Federal Trade Commission for this incident.)

Legal Issues

In order to serve their claim on Google, whose place of business is outside the jurisdiction of the UK courts, the plaintiffs had to first seek approval through the court.  They needed to establish:

  • That there was a serious issue to be tried on the merits;
  • There was a good arguable case that their claims came within one of the jurisdictional ‘gateways’;
  • That England was clearly or distinctly the appropriate forum for the trial; and
  • That overall the court should exercise its discretion to permit service.

The claimants were initially successful in a decision handed down last year, but Google appealed.

Tort or Not A Tort?

One of the critical issues was whether the misuse of private information was a tort (which would be a jurisdictional ‘gateway’) or part of a broader “breach of confidence” claim (which would not satisfy the necessary criteria).   The Court of Appeal noted that these issues are developing and changing rapidly, and that there has been confusion over the proper classification of various privacy issues.  However, the Court dismissed Google’s argument that they should be bound by remarks in Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595, which suggested that claims based on misuse of private information had been “shoehorned” into the law of confidence.  The Court dismissed the remarks as obiter dicta, and then concluded [at 51]:

“Against the background we have described, and in the absence of any sound reasons of policy or principle to suggest otherwise, we have concluded in agreement with the judge that misuse of private information should now be recognised as a tort for the purposes of service out the jurisdiction. This does not create a new cause of action. In our view, it simply gives the correct legal label to one that already exists.”

Damages Without Pecuniary Loss

The Court also had to consider several other issues, including whether the claimants could apply for compensatory damages without demonstrating pecuniary loss.  The Court found that while the Data Protection Act 1998 seemed to prohibit recovery of damages in these conditions, this was incompatible with various pieces of European Union legislation, including the EU Charter of Fundamental Rights, as well as going against the spirit of the Act overall.

Pauline Walley, writing in the Irish Times, said that:

“It is too early to consider the impact of this ruling, which is likely to be appealed, but the dicta of Tugendhat J, and the court of appeal, are strong on the issue of vindication of data privacy rights within the directive and CFR [the Charter of Fundamental Rights] framework.”

Google’s appeal was dismissed, with the Court finding the claims raised serious issues which merited a trial.

In Australia

The Human Rights Law Centre noted last year, after the initial case, that while:

“[t]his decision signifies an important step for privacy protection in the UK… The Vidal-Hall decision is unlikely to have much impact in Australia as the UK jurisprudence is driven by the Human Rights Act and the obligations under the European Convention on Human Rights.”

Last year, Attorney-General George Brandis explicitly ruled out supporting the creation of a tort of privacy, after the Australian Law Reform Commission released a report recommending one be introduced by statute.  For more information on the report, see TimeBase’s previous article.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

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