Lloyd V Google LLC – Relief For The Data Sector? Mr John MacKenzie

Some saw this case as a multi billion pound representative action, seeking justice in the face of unwarranted use of personal data. Others saw it as a doomed attempt to drive a consumer rights agenda by Mr Lloyd, who has had a long career in consumer protection, and was Executive Director of Which? between April 2011 and February 2016. The claim was supported by significant litigation funding.

The claim alleged breach of the duty imposed by s 4(4) of the Data Protection Act 1998 ("DPA"). The allegation was that over some months in 2011-2012 Google acted in breach of that duty by secretly tracking the internet activity of Apple iPhone users, collating and using the information it obtained by doing so, and then selling the accumulated data. The method by which Google was able to do this is generally referred to as "the Safari Workaround". The effect of the Safari Workaround was to enable Google to set a DoubleClick Ad cookie on a device, without the user's knowledge or consent, immediately, whenever the user visited a website that contained DoubleClick Ad content.

Regulatory fines

Google got into a fair bit of trouble following the discovery of the Safari Workaround. In August 2012 the company agreed to pay a US$22.5 million civil penalty to settle charges brought by the United States Federal Trade Commission that it misrepresented to users of the Safari browser that it would not place tracking cookies or serve targeted advertisements to those users. On 11 November 2013 it agreed to pay US$17 million to settle US state consumer-based actions brought against it by attorneys general representing 37 US states and the District of Columbia.

The Lloyd v Google case was at an early stage in procedure - service of the proceedings. But the question considered went to the heart of the dispute - did the claim disclose a basis for seeking compensation under the Data Protection Act?

The Safari Workaround

There were three cases in the UK relating to the Safari Workaround, reported as Vidal-Hall v Google Inc [2014] EWHC 13 (QB), [2014] 1 WLR 4155. The nature and basis of the claims in Vidal-Hall were described as compensation for distress suffered by the individual claimants when they learned that information about their "personal characteristics, interests, wishes or ambitions" had been used as the basis for advertisements targeted at them, or when they learned that, as a result of such targeted advertisements, such matters had in fact, or might well have...