Representative privacy actions in the 21st Century
By Sam Knight, Underwriter
(Estimated reading time: 1 minute 26 seconds)
On 10th November 2021 the Supreme Court reversed the decision of the Court of Appeal in the Lloyd v Google case, clamping down on representative privacy actions in the age of the internet.
Previously, the Claimants had been successful in a £3bn representative action for loss of control of data stemming from Google allegedly tracking Apple iPhone users’ internet activity without permission. The Supreme Court found that no compensation was due to the Claimants as they had suffered no ‘damage’, even though their rights under the Data Protection Act 1998 had been contravened.
It was held that the words of the statute at Section 13 ‘cannot reasonably be interpreted as giving an individual a right to compensation without proof of material damage or distress’ (per Lord Leggatt JSC at [115]).
In short, the fact that Google allegedly gathered the Claimants’ data improperly was not enough, what had to be shown was that the Claimants had suffered material damage or distress as a result of the Data Protection Act 1998 breaches.
What does this mean for the future of representative privacy actions in the 21st Century? More emphasis is going to be placed on showing what damage the Claimant actually suffered by the contravention of their rights; making Data Protection Act 1998 claims more like traditional torts than a standalone cause of action in privacy.
In the changing climate of privacy claims, an ATE policy could be the difference between clients asserting their legal rights or simply abandoning their claims. Temple Legal Protection are privacy experts, providing specialist policies for privacy cases backed-up by fully deferred and contingent premium structures.
To find out more about ATE insurance for privacy cases, please contact our commercial underwriting team by phone on 01483 577877 or by email to matthew.pascall@temple-legal.co.uk
