The Court of Appeal ruled on two important issues. The first issue was whether there is a tort of “misuse of private information” under English law. In order to serve proceedings in an English Court on Google (in California), the claimants’ arguments had to satisfy one of a limited number of “gateways.” The relevant gateway in this case required the claimants to show that their claims relate to an actionable tort. Because there is existing case law holding that there is no general tort of invasion of privacy, the claimants argued that the High Court should explicitly recognize a tort of misuse of private information. The High Court agreed and Google appealed the decision. The Court of Appeal upheld the High Court’s decision, and affirmed that there is a tort of misuse of private information under English law. The Court of Appeal stated that this was not a new cause of action, but that it “simply gives the correct legal label to one that already exists.”
The second issue was whether damages under Section 13(2) of the Data Protection Act 1998 (the “Act”) can be awarded in circumstances in which the claimant has not suffered any financial harm. The claimants argued that they had suffered anxiety and distress, but did not allege that they suffered financial harm. This case was unusual because the UK Information Commissioner’s Office (the “ICO”) made submissions to the Court of Appeal as an intervening party. In those submissions, the ICO argued that its previous guidance on Section 13 (which indicated that damages were not available except in cases of financial harm) was incorrect, and that damages should be available in this case. The Court of Appeal accepted the ICO’s submissions but held that, using a literal interpretation, Section 13(2) does not permit damages in the absence of financial harm. The Court of Appeal also noted, however, that Section 13(2) of the Act did not appear to be compatible with EU Data Protection Directive 95/46/EC, which appears to permit claims for damages without financial harm. Expanding upon the evolution of English case law in this area over the last decade, the Court of Appeal held that the claimants could recover damages from Google without showing financial harm, regardless of the contrary language in Section 13(2). It is not yet clear whether Google will appeal this decision.
The consequences of the case may be significant. For Google, it means that the claimants can bring their claims in English Courts directly. This may result in large numbers of such claims, although the Court of Appeal noted that any damages likely will be “relatively modest.”