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Key facts of the case:

The case was an appeal by Google Inc, which is based in the US, against a decision holding that the English courts had jurisdiction to try the claims by three UK internet users for misuse of private information and breach of the Data Protection Act 1998 (DPA) (which transposes EU Directive 95/46). Google had tracked private information about the claimants’ internet usage without their knowledge or consent by using cookies and given that information to third parties, while Google’s publicly stated position is that such activity would not be performed without users’ consent. The claimants sought damages under Section 13 of the DPA for distress while not having suffered pecuniary loss. In order to obtain permission to serve the proceedings out of the jurisdiction, the claimants successfully established that there was a serious issue to be tried, that their claims came within the “injunction” and “tort” jurisdictional gateways of Paragraph 3.1 (9) of the Civil Procedure Rules Practice Direction 6B (CPR PD 6B) and that England was the correct trial forum. The court held that the English courts had jurisdiction to try the claims for misuse of private information and the claim under the DPA.

Outcome of the case:

The appeal by Google Inc was dismissed. The court held that, on the basis of the CJEU’s decision about Directive 95/46 in Leitner v TUI Deutschland GmbH & Co KG, “damage” could include moral non-pecuniary damage such as distress. The court further held that it was important that there was an effective remedy available for a distressing invasion of privacy as Articles 7 and 8 of the Charter make specific provision for the protection of personal data. Section 13 of the DPA, when interpreted literally as “damage” being pecuniary loss, had not effectively transposed Article 23 of Directive 95/46 into domestic law. Having regard to Article 47 of the Charter, the court disapplied Section 13 of the DPA with the result that compensation would be recoverable for any damage suffered.