As everyone knows, Google knows everything. Google collates and compiles information on virtually every search ever done on every computer, and uses this information to create money from selling advertising space on user’s screens. Google analyses that information to deduce from it what the interests of the users of that computer might be and then flashes those ads before our very eyes. A brilliant business model that yields to it more gross domestic product than all of Africa combined. It is a contract with all of us that Gen Y seems very comfortable with, but Gens X, W, V and any other unnamed preceding Gen for people born before 1912 …. well, not so much.

The Defendant (again)

Is Google allowed to use this information in this way? In England, a small group of Claimants are putting it to the test. They have sued Google and allege that Google has misused their private information and acted in breach of confidence.

The three Claimants variously work as an editor, an IT security company person and an IT services company person. They, like pretty much every other person born after 1912, use the Google search engine, Google maps and Gmail.

On 12 June 2013, a Master granted permission to the Claimants to serve Google Inc with these proceedings in the USA. In this case, Google appealed to a Judge of the High Court. To establish that they could serve the proceedings outside England, the Claimants basically had to show, among other matters, that the claims arose from a tort where damage was sustained in the jurisdiction.

They also had a show a raft of other things like, for instance, that they had a good arguable case, with real, as opposed to fanciful prospects of success.

The claims were that Google Inc wrongfully collected information from their computers and then used that information to generate advertisements that were displayed on screens. They alleged that there were circumstances where the targeted advertisements might reveal information about their personalities, desires and ambitions, which might be sensitive or relate to protected characteristics. None of them claimed financial or special damage. Just that they suffered acute distress and anxiety. Nor did they claim that they were shunned or discriminated against as a result of anyone seeing anything on their screens.

Justice Tugendhaft considered how the Google brower worked, how Safari worked and then a whole range of different types of Cookies. His Honour also noted that the affidavit material referred to 170 other claimants who used Safari, but they were not claimants in this case. Why they were mentioned by the Claimants? Well maybe it sounded good.

His Honour also noted how, in the USA, Google had agreed to pay a civil penalty of $22.5 million to the United States Federal Trade Commission and also $17 million to settle US state consumer-based actions brought by the United States attorneys general representing 37 States and the District of Colombia.

Going back to the interesting question for the common law: is the claim for misuse of private information a claim in tort? …. A. Yes.

His Honour referred back to Naomi Campbell’s case, which was a claim for breach of confidence because some paparazzi took photos (that were published) of the supermodel leaving Alcoholics’ Anonymous. The conclusion from that case included this statement: “the essence of the tort is better encapsulated now as misuse of private information.”

That was all His Honour needed. After analysis of other cases, conflicting, convoluted and otherwise, His Honour ultimately accepted that the tort of misuse of private information was a tort. Hurrah!

Addressing further questions, His Honour concluded that the damage alleged, being for distress and anxiety, was sufficient to create a claim for damage within the jurisdiction, and the claim was sufficiently serious for it to be brought. However, for all of the class action lawyers around the world who are salivating like Pavlov’s dogs, His Honour put a slight dampener on it:

• at [107]: “And for the avoidance of misunderstanding, I have not decided that any other user of the Safari browser in the Relevant Period would have a sufficiently strong case on damage.”
• at [118]: “… what is specific about the complaints in this case is that the information was, or may have been, apparent from the screens was, on particular occasions, private information. The particular types of information specified in each of the Confidential Schedules is information for which each Claimant has a sufficiently strong case that that information was private.”

Google also tried on the argument that England was an inappropriate forum and that the Claimants should sue in the USA. Pretty hard pressed to argue this when its own business is so omnipresent that it includes close-up maps of the Moon. Anyhow, Google did not suggest which State the Claimants should sue in, and His Honour rejected that argument quickly. England was the appropriate forum.

So the matter will head to trial in the UK. Google have stated that they have ceased using the Claimants’ information in the matter complained of, but somehow, this one looks like it will go all the way. As for the position in Australia, one cannot help but think that a similar-style writ will soon be finding its way to Silicon Valley…