Our previous blog highlighted the facts of the case (brought by Internet users against Google’s ad-tracking practices) and the significant consequences of the ruling for organizations handling personal data in or from the UK. In short, the Court of Appeal held that:
- English law recognizes misuse of private information as a free-standing tortious cause of action (so litigants can seek injunctions and compensation even against foreign defendants, not just in the UK); and
- Section 13(2) of the Data Protection Act 1998, which hitherto had prevented claims for “distress” (i.e. moral damages) in the absence of pecuniary (i.e. financial) damage, was invalid on two grounds:
- It was incompatible with Article 23 of the EU Data Protection Directive (95/46/EC), which does not condition recovery for distress on simultaneous occurrence of pecuniary damage; and
- It limited protection in a manner conflicting with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights.
Although Google appealed on all counts, the UK Supreme Court granted permission to appeal only in relation to the invalidity of Section 13(2) of the Data Protection Act. In doing so, it tacitly upheld the view that misuse of private information is indeed tortious in nature, thus allowing the claim in tort to proceed against Google, regardless of the eventual outcome of Google’s appeal on Section 13(2).
For now, that section of the Data Protection Act remains dis-applied, so unless and until the UK Supreme Court reverses the Court of Appeal’s decision, litigants will remain able to demand compensation for mere distress due to breaches of the Act.