May 9, 2021


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The UK watchdog will stop enforcing data protection law if the Supreme Court sided with Google, its lawyer told judges • The Register

A barrister for the Information Commissioner’s Office indicated the regulator would stop law enforcement on data breaches if the Supreme Court sided with Google in a lawsuit regarding class action lawsuits.

The shocking threat was made on behalf of the ICO by barrister Gerry Facenna QC, who is interfering on behalf of the authorities in the Lloyd v Google data protection case.

“If a large number of data subjects have lost their data, they have per se suffered injuries: injuries of the kind I described, such as loss of control of their data, “Facenna told judges in the UK’s highest court.” That is the commissioner’s view on these provisions, that is the basis on which he took control action at the moment If the word ‘harm’ in this regime does not include loss of control, it must be considered in the implementation of the control barriers. “

Facenna talks about the difference between a “loss of control” of a data controller’s data and the “damage” suffered by data subjects as a result of that loss. A loss of control (as stated here, using personal data provided for one purpose for something else altogether) is unlawful.

Google has previously argued in the case that in law there should be a distinction between loss of control and damage, saying that even if caused by the loss of control of millions of Safari users ’data it should not be held liable because no coherent proof that anyone suffered harm (in the legal sense) as a result.

Facenna’s written submissions to the Supreme Court in this regard made the ICO’s position clear, stating:

The barrister also insisted the ICO was not engaging Richard Lloyd, whose Google You Owe Us campaign aims to get up to £ 3bn from Google for early outrage over the Safari Workaround, until half of it goes to a venture capital fund supporting the campaign.

You cannot consent to something that is against the law

Before Facenna’s arguments came Hugh Tomlinson QC, who was putting Lloyd’s case against Google before Supreme Court judges. Tomlinson argued the exact same thing as Facenna; drawing a legal distinction between loss of control and damage caused by a data breach, he said, has created a huge huge hole in data protection law for companies that intentionally misuse it.

While it is acknowledged that British users of Apple’s Safari browser in early 2010 were “very unlikely” to have “suffered material damage” from Google releasing their generated browser information to beam targeted ads to them, Tomlinson added: “Obviously members of the class have the same interest in claiming. Their interest is to establish Google that their data protection rights have been violated by of running Safari Workaround. “

Profiteering and vindication

Lord Burrows, one of the judges, pondered why “the conflict of interest is relevant” for a loss-of-control case. How can it be “effective” to sue Google for loss of control if the alleged nonsense “earns” a business rather than an openly criminal act?

“My lord,” replied Tomlinson, carefully choosing his words, “we say, from the point of view of the claimants, that the loss of control over your data or private information which someone has provided it, is different. and more seriously wrong than the one in which it was done unintentionally. “

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Dissatisfied, Lord Burrows went to the heart of his question: “But for me – I put it to you now, that what you are focusing on is not loss of control, you are focused on the nature of the violation and that is what you are looking for. for the award. It’s not really compensation, which in fact you’re asking about something like vindicatory damages. “

It was explained earlier that vindicatory damages were not available for Lloyd’s claim against Google. Falling in front of a treacherous hill, Tomlinson shifted a gear, looking less confident that he has any point in this case since 2018.

“I am certain, as your lord knows of the factors that concern the constitution of an action representative – I cannot focus on the individual circumstances of the claimants because it is impossible to have a collective action. So I am focused on the nature that’s the violation, ”the QC said.

And we will go back to the money

As for funding Lloyd’s case, Tomlinson was absurd: without it being supported by Therium Capital Partners LLC and paying Lloyd his 50,000 salary, Google accused it of “not being practical in this case.” He also revealed that Lloyd’s lawyers are “seeking an injunction already [if it lost the main case] Google paid damages to the representative on behalf of class members. “

This means that Lloyd and his supporters will have control of any compensation that Google is ordered to pay.

Lord Leggatt, another judge, inquired about it. “Suppose damages are awarded on the basis of the claimants being entitled to £ 500 or whatever it is. What is the legal basis for the first part of that amount to be paid to the funders of the proceedings without their consent? [The members of the class] never signed up to funding litigation? “

“Because,” Tomlinson replied, “that’s the cost of getting the damages. The cost of getting the funds.”

Lord Leggatt replied: “They did not choose that the funders should get the first 40 per cent or whatever it was.” Google had previously pointed out in court that the Therium Litigation Funding IC in fact is entitled to 50 percent of the winnings.

Tomlinson dismissed this by saying that members of the class representative could take any profanity offered by Lloyd or leave and start their own lawsuit, saying: “Your lord is right, of course, they did not allow it but the position is, without the funders, there won’t really be funding, and as I say [members of the class] have the option to go to court and say ‘we don’t want to be involved in this action.’ Or ‘we want to continue on our own.’ Or ‘we’re not interested in it in any way.’ “

Realizing this method meant the damages awarded to millions of people would end up in the pocket of a tiny little one, Lord Leggatt insisted: “I am not sure how you can say the damages awarded to them can be allotted. without the consent of the litigation funders… What is the legal principle there, more precisely? Good jurisdiction, restitusary principle? What is it? “

“Mr. Lloyd is the treasurer of the funds,” Tomlinson explained. “He will hold it in trust for a member of the class. The trustee has the right to pay for taking possession of the trust. It is in that analogy, we said, one of the costs of taking possession of the trust. of the trust is the cost of funding the proceedings. “

The case is over and judgment will be handed down in the not -too -near future. This will set an existing paradigm on how class action lawsuits will continue in the future, so the principles here will set the tone of mass data protection lawsuits for the 2020s.

Once the Supreme Court decides on the legal question decided here (whether Lloyd should be denied permission to serve his not-so-one-class-action case to Google), a full court will have a full hearing on the Act on Data Protection rights and inaccuracies – and, in turn, future court decisions are likely to fall on appeal in every way. The chances of any ordinary person receiving a payment from Google are far from temporary, but El Reg will be aware of it all however. ®