The Supreme Court will deliver judgment on Wednesday in what has been described as one of the most important cases in recent legal history: Lloyd v Google.
Richard Lloyd continues Google for collecting web browsing data from iPhone users between 2011 and 2012, despite the US tech giant claiming at the time that it was prevented from doing so by the browser’s default privacy settings Safari.
He filed the complaint not only as an individual affected by Google’s actions, but as a person who represents more than four million people in revolutionary representative action.
If Mr Lloyd wins, the US tech giant could be forced to forgo billions to compensate affected iPhone users who could potentially claim a tariff of up to Â£ 750 each, as Mr Lloyd said. in his letter of complaint, although a much lower figure is likely.
But the real importance of the case will be its effect on jurisprudence.
Judgment against Google could open the door to representative action in Britain in other data protection cases, allowing consumer advocates to bring complaints against companies that violate privacy law .
The London judgment will come on the same day the company receives a ruling in his appeal against a record fine of 4.34 billion euros (3.8 billion pounds sterling) of the European Commission to force phone manufacturers to preinstall its applications.
How did it start?
Almost a decade ago, Google was caught secretly placing an ad tracking cookie on Safari web browsers – whether used on iPhone, Mac or iPad – although they assured those users that they would by default be excluded from this monitoring.
The workaround was discovered by Jonathan Mayer, then a graduate researcher at Stanford University. At the time, Google said the data collection was accidental and that didn’t mean the feature bypassed Safari browser’s default security settings.
What did Google do?
As the FTC explains: âGoogle has placed a certain advertising tracking cookie on the computers of Safari users who have visited sites in Google’s DoubleClick advertising network, although Google has previously indicated to these users that they will automatically be excluded from this tracking, due to the default settings of the Safari browser used in Macs, iPhones and iPads.
“Google specifically told Safari users that because the Safari browser is configured by default to block third-party cookies, as long as users do not change their browser settings, this setting” effectively accomplishes the same thing as [opting out of this particular Google advertising tracking cookie]’.
Despite these promises, the FTC accused Google of placing advertising tracking cookies on consumers’ computers, in many cases bypassing the default cookie blocking setting in the Safari browser.
âGoogle exploited an exception to the default browser setting to place a temporary cookie from the DoubleClick domain. Due to the particular way the Safari browser worked, this initial temporary cookie opened the door to all cookies from the DoubleClick domain, including tracking Google advertising the cookie that Google had represented would be blocked from Safari browsers. “
The company then settled this violation with the United States Federal Trade Commission, paying a record civil fine of $ 22.5 million in August 2012.
The company also paid dozens of US states $ 17 million admitting that it collected this data for advertising purposes while letting users know it wouldn’t, although it did. within the framework of a regulation not accepting any responsibility.
How did it end in the Supreme Court?
Richard Lloyd first brought his claim against Google in 2018 and sought leave to serve the claim out of jurisdiction, as Google is based in the United States.
Although the High Court initially dismissed the claim, the Court of Appeal upheld it and said that while Mr. Lloyd’s ‘opt-out’ class action was ‘unusual’, it was permissible because the iPhone users during this time have all been the victims of wrongdoing and suffered the same loss.
Google has appealed the ruling, sending the case back to the UK Supreme Court which will have to decide what damages are owed to affected iPhone users, whether those users have all suffered the same harm and whether representative actions are needed. good way to solve these problems. .
What will be the impact?
Jamie Curle, partner at DLA Piper law firm, described the judgment as “one of the most anticipated decisions of recent years” and said it would “have a significant impact on the volume and nature of litigation in the field of data privacy “.
“The question many will want to answer is whether this judgment will represent the dawn of an American-style class action suit for data protection claims or whether the traditionally more conservative views of the English court will prevail?” Mr Curle added.
“All eyes will be on this Supreme Court judgment to help answer many open questions of law regarding representative actions for data protection claims,” ââsaid Ross McKean, Data Protection Partner also at DLA Piper.
“The plaintiff law firms and their funders have a lot to gain from this decision, as will any organization dealing with personal data, as the theoretical value of damages for the actions of data protection representatives is enormous. , running into billions for larger claims. “