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Google swats away £3bn Safari Workaround ad-tracking cookie lawsuit in Supreme Court victory

Campaigners' case had 'no real prospect of success'

Google has successfully fought off a £3bn lawsuit brought in London over ad tracking cookies, beating the Google You Owe Us campaign in the Supreme Court of England and Wales.

The case, brought in 2017, had "no real prospect of success", the Supreme Court unanimously ruled this morning, in a devastating blow for organisations hoping it would create new law allowing them to easily launch opt-out class action lawsuits against companies who leak user data or whose data stores are broken into.

Former Which? director Richard Lloyd was the frontman of the case. He lost because his legal team filed suit against Google "without attempting to show that any wrongful use was made by Google of personal data relating to that individual or that the individual suffered any material damage or distress as a result of a breach", as the court ruled.

Lloyd pursued his claim for financial damages from Google under section 13 of the Data Protection Act 1998, saying in effect that it was obvious the planting of ad tracking cookies through the Safari Workaround was unlawful – meaning users subjected to it should receive compensation. Lord Leggatt, giving the Supreme Court's judgment, ruled that Lloyd's legal team had missed the mark by not collecting evidence of "material damage or distress" to each individual who signed up for their class action.

The Supreme Court judge added that Lloyd's lawyers had set the bar for membership of their class too low. Instead of assessing whether each person in the class (action) had suffered measurable damage from the Safari Workaround cookies, they had chosen "not to rely on any facts about the internet activity of any individual iPhone user".

The judge ruled: "I cannot see that the facts which the claimant aims to prove in each individual case are sufficient to surmount this threshold."

In a statement a Google spokeswoman said: "This claim was related to events that took place a decade ago and that we addressed at the time. People want to know that they are safe and secure online, which is why for years we've focused on building products and infrastructure that respect and protect people's privacy."

Lloyd told newswires outside the court that the government ought to step in and clarify the rules around class action-style lawsuits. His campaign, Google You Owe Us, described this morning's ruling as a "bitter blow", saying: "Although the Court once again recognised that our action is the only practical way that millions of British people can get access to fair redress, they've slammed the door shut on this case by ruling that everyone affected must go to court individually."

Will Richmond-Coggan, a data protection lawyer with City firm Freeths, commented: "This has wide-ranging implications for the very large numbers of group claims brought in the wake of the Court of Appeal’s decision, which depended on the mere fact of a technical breach of the legislation, rather than being able to point to any specific loss or damage having been suffered. Such claims are likely to be significantly more costly and time-consuming to pursue in future".

While it dismissed Lloyd's case, the Supreme Court did also give the green light to commercially-controlled lawsuits run through a nominal figurehead such as Lloyd, ruling: "There is no reason why a representative party cannot properly represent the interests of all members of the class, provided there is no true conflict of interest between them."

Julian Copeman, a partner of London law firm Herbert Smith Freehills, opined: "The Supreme Court has suggested a US style class action could still be brought to determine liability, but that smaller group claims would then be needed to deal with different issues of compensation. Businesses should still ensure their data and privacy risk management frameworks are fit for purpose – the floodgates have not been opened, but group data claims remain a threat."

For now, at least, Google's breathing easy – though this morning's multi-billion dollar judgment against it [PDF] in Luxembourg won't give it much room for complacency. The EU's General Court this morning upheld the record €2.42bn fine imposed by the Commission in 2017 despite protests from the Chocolate Factory. It said in a statement just minutes ago that it "recognises the anticompetitive nature of the practice at issue." ®

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