Cookie Monster or One Smart Cookie?

29 Apr 2021

The appeal of Lloyd v Google in the Supreme Court

Yesterday saw the first day of Google’s two day appeal to the Justices of the Supreme Court. Mr Lloyd’s billion-pound legal action against the tech-giant seeks compensation for an estimated 4.4 million iPhone users in England and Wales whose information was tracked and collated by Google using what has been called the ‘safari workaround’ cookie. A surprise Court of Appeal judgment in 2019 unanimously overturned a High Court decision that threw out the proposed representative action.

Antony White QC, on behalf of Google, submitted that Mr Lloyd’s representative action could not succeed because the individual claimants did not have the same (or in some cases any interest) in the damages recovered by another individual. He also noted that there are significant practical difficulties in identifying the individuals who had the cookie concerned on their iPhone during the relevant period. 

Mr White also spent considerable time trying to persuade the court that an individual must suffer actual damage (and not just be the subject of a breach) before they can be compensated. In addition, he sought to argue that the threshold to use when assessing whether damages should be awarded must be the seriousness of the harm, not the seriousness of the breach (citing Vidal Hall v Google in support). Google argued that the Court of Appeal’s ruling could “open the floodgates” to representative actions brought on behalf of millions of people for breaches of their data protection rights. 

Hugh Tomlinson QC for Mr Lloyd began his submissions by reiterating that an individual’s rights encompassed in Article 8 of the ECHR must be protected, and that the compensatory principles within should also apply to domestic breaches of data protection. Disputing Google’s arguments, Mr Tomlinson submitted that damages are recoverable for loss control/loss of autonomy over an individual’s data. 

The remainder of Mr Lloyd’s case for the appeal is being heard today, which can be streamed live via the Supreme Court’s website. You can also follow BLM’s twitter page for regular updates: @BLM_Law 

Many user-based corporations and data protection lawyers will be eagerly awaiting the court’s ruling, which can be expected at a later date.

Written by Partner Tim Smith and Trainee Solicitor Nicola Howlett

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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Tim Smith

Tim Smith

Partner and Head of TMT & Cyber Practice Group,

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