Unauthorised use of personal data for marketing or other purposes is unlawful but, in order to win compensation, individuals affected by such conduct must prove that they have suffered not just a breach of their rights but actual damage. A judge resoundingly made that point in blocking a group action against Google.
For some months during 2011 and 2012, Google was alleged to have secretly tracked the Internet activity of iPhone users in order to harvest, collate and use their personal data. Although there was only one claimant named in the action, he sought to represent the interests of about 4.4 million British iPhone users. There was no dispute that, if the facts alleged were proved, Google had acted in breach of the Data Protection Act 1998 (DPA). Google had estimated that, if found liable, it would face a compensation bill of up to £3 billion.
In refusing to sanction service of the proceedings on Google in America, however, the judge found that the facts alleged disclosed no basis on which compensation could be sought under the DPA. Although iPhone users were said to have been wrongfully deprived of control of their personal data, it had not been alleged that they endured distress or financial loss. In those circumstances, it could not be established that they had suffered damage within the meaning of the DPA.
Noting that not every person whose data is acquired or used without consent suffers harm that should be compensated, the judge observed that some people have no objection to non-consensual disclosure or use of their private information. Lasting relationships were often formed by telephone numbers being passed between individuals without consent and some people were quite happy to receive advertising or marketing material that had been targeted on the basis of harvested personal data. Many more were indifferent to such use of their data.
The facts alleged in the case were in no way individualised and could not establish that anyone’s right to personal autonomy had been harmed to an extent that amounted to damage. The judge found that, in any event, a group action against Google could not be sustained. Even were it possible to ascertain members of the representative class of affected iPhone users, it could not be shown that they shared the same interest.
