UPDATE (1 July 2016): the appeal will not now be heard before the UK Supreme Court. The case has been withdrawn following agreement between the parties.

The Supreme Court has granted permission to appeal to Google on two of the three matters considered by the Court of Appeal in the seminal case of Vidal-Hall v Google, Inc. [2015] EWCA Civ 311.

Carter-Ruck are acting on conditional fee agreements (‘no win no fee’) for a number of people in claims against Google for failure to remove links to inaccurate or irrelevant data on the internet, including claims for breach of the Data Protection Act and for damages under section 13.

The claim in Vidal-Hall

The lead claimant, along with two others, is pursuing Google for claims that Google, through its use of internet ‘cookies’, misused her private information, breached her confidence and infringed the Data Protection Act 1998.

The cookies were small programmes which allowed Google to identify and categorise information generated by the claimants’ use of their Apple Safari internet browsers, and subsequently target advertising based on the claimants’ browser use. The cookies were installed on the claimants’ computers without their consent or knowledge, contrary to Google’s stated position that browser-generated content could not be tracked or collated without the user’s express permission.

The claimants are seeking damages for distress and anxiety caused by the alleged breaches; they have not alleged pecuniary loss or other material damage. It is the matter of damage which forms the basis of the Supreme Court’s permission to appeal.

A press release on the Supreme Court website indicated that permission was granted for Google to appeal on whether the Court of Appeal was right, firstly, to hold that section 13(2) Data Protection Act 1998 was incompatible with Article 23 of the Data Protection Directive 95/46/EC, and second, to disapply section 13(2) on the grounds that it conflicts with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights.

The decision by the Supreme Court not to allow permission to appeal against the Court of Appeal’s decision that misuse of private information can be characterised as a tort, will have surprised few commentators.

The DPA’s definition of “damage” more restrictive than the Directive’s for the purposes of compensation

The DPA was intended to give effect to the Data Protection Directive, Article 23 of which mandates that “Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage sufferance.”

In contrast, s.13(2) provided for “compensation for…distress” but only if “(a) the individual also suffers damage by reason of the contravention, or (b) the contravention relates to the processing of personal data” for “special purposes” defined as one or more of “journalistic, artistic or literary purposes” (s.3). The claimants in Vidal-Hall, by their own admission, did not fall into either category.

The Court of Appeal considered that “damage” for the purposes of Article 23 “does not distinguish between pecuniary and non-pecuniary damage” [79] and that the comments of Buxton LJ on this point in a prior case, Johnson v Medical Defence Union [2007] 96 BMLR 99, did not form a binding precedent.

The Court identified that the exclusion of the right to compensation for distress where the conditions stated in s.13 were not satisfied was a “fundamental feature” of the DPA, and the right to damages under s.13 could not be interpreted in a way compatible with the right under Article 23.

The DPA disapplied

The Court instead disapplied the domestic provisions on the grounds that Article 47 of the EU Charter of Fundamental Rights guaranteed an effective remedy to violations of rights and freedoms under EU law, particularly the Charter’s rights to respect for private and family life, home and communications (Article 7 of the Charter) and right to the protection of personal data (Article 8(1). This argument was not advanced before Tugendhat J at first instance.

The Appeal Court judges preferred the precedent of the court in Benkharbouche and Janah v embassy of Sudan and others [2015] EWCA Civ 33 that, if a right afforded under EU law is breached, Article 47 Charter is engaged and the right to an effective remedy for breach of EU law rights provided by Article 47 embodies a general principle of EU Law. Usually, and certainly in this case, the general principle can be used horizontally, in private disputes not necessarily against public bodies. National courts must disapply any conflicting provision if it conflicts with the requirement for an effective remedy under Article 47, unless the court “would otherwise have to redesign the fabric of the legislative scheme”.

The Court distinguished Benkharbouche from one of the prisoners voting cases, R (Chester) v Secretary of State for Justice [2013] UKSC 63 (in which Lord Mance had refused to disapply the Parliamentary ban on prisoners voting), on the grounds that Chester concerned interpretation of compatibility not disapplication, and if the blanket ban was disapplied, there would need to be careful consideration by the legislature – not the judiciary – as to what ban was proportionate enough.

Analysis

It remains to be seen whether the Supreme Court will agree that the right to compensation under the DPA at s.13(2) should be disapplied, favouring EU law over Parliamentary statute. The Supreme Court clearly wishes to consider data protection claims in some detail.

Moreover, this is not just a conflict on interpretations: it is a question of sovereignty, and whether EU law, which aims to protect rights across the Continent, should trump an explicit Act of Parliament.

Either way, as we noted in a previous blog post, this will only affect a claim for damages and not a claim for an injunction to restrain the processing of inaccurate data, and a claim under the DPA may be a useful adjunct to, or indeed a replacement for, a claim in defamation. In Trushin v National Crime Agency [2014] EWHC 3551, for instance, a claim for damage to reputation under s.13(2) of the DPA was allowed to proceed in the face of a strike-out application, as “the kind of claim that has a logical connection” to a substantial claim for damages, under the DPA, that related to travel restrictions.

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