The Cookies Crumble: the case against Google

In a recent case against Google, the claimants argued that Google had collected private information about their internet usage via their Apple Safari internet browser. They claimed that Google had done so without their knowledge and consent by the use of cookies and then aggregated and sold the information to advertisers. The Court of Appeal had to consider two linked questions:


a. Whether the claim for misuse of private information was properly characterised as a tort (civil wrong) – this was important because Google is an American company whereas the claimants wanted to establish they had a proper basis for bringing their claims against Google in England; and

b. Whether the claimants could have a claim for compensation against Google without having suffered pecuniary loss – again this was important because the claimants could not identify any specific pecuniary losses deriving from the collection and use of their information.

The Court of Appeal found for the claimants on both questions and unless a settlement is reached the claims will now proceed to a trial in England. The Court noted that the claims, "concern what is alleged to have been the secret and blanket tracking and collation of information, often of an extremely private nature, as specified in the confidential schedules, about and associated with the claimants’ internet use, and the subsequent use of that information for about nine months. The case relates to the anxiety and distress this intrusion upon autonomy has caused".

As for the damages the claimants might recover, the Court noted that, "It is correct, as [Google’s Counsel] says, that compensatory damages may be relatively modest (as they often are in claims for misuse of private information and for breaches of the [Data Protection Act]) albeit that there is also a claim for aggravated damages in the present case. As [Google’s Counsel] also points out, the claim for an injunction has gone. But that is not the beginning or end of the matter. As [the Claimants’ Counsel] says, the damages may be small, but the issues of principle are large".

The case is of interest since it confirms:

a. there is now a proper basis to seek damages for misuse of private information against entities based overseas; and

b. that claimants seeking damages for the misuse of private information do not need to establish they have suffered any pecuniary losses in order to recover damages, and in appropriate cases may be able to recover aggravated damages.