Google's jurisdictional challenge against Safari Lawsuit fails
In what can only be described as a comprehensive victory for Internet users in England and Wales, the High Court today made a judgment in favour of Claimants petition to initiate legal proceedings against Google Inc. in England.
On December 16th 2013 Mr Justice Tugendhat of the High Court heard skeleton arguments and a witness statement from Dan Tench from Olswang LLP (see attachments) concerning whether or not Claimants should be permitted to file suit against Google Inc. in England. Google's lawyers argued that because Google Inc. is based in the United States, any claims against them should be filed there on jurisdictional grounds which the Claimants' lawyers argued would create an unfair burden on the Claimants and would likely result in a failure of justice.
As can be seen in the lengthy documents, the arguments actually go a great deal further and today a judgment was made by Mr Justice Tugendhat which not only seems to have created the first new Tort under English law in 80 years but also appears to have an incredibly insightful grasp of the issues at hand.
First, let us cover this new Tort which seems to have been created. In a spectacular failure on Google's part, to assert their arguments that their activities do not permit tortious remedies they have actually set themselves up for further action in the future by forcing Mr Justice Tugendhat to create a new Tort on the basis of Misuse of Private Information. In paragraphs 52-69 Mr Justice Tugendhat explores the issue of Misuse of Private Information in relation to various historical references. First and foremost he makes it clear that there is a significant difference between Breach of Confidence (which is defined as not being a tort under Kitetechnology BV v Unicor GmbH Plastmaschinen) and Misuse of Private Information citing Vestergaard Frandsen AIS v Bestnet Europe Ltd, Metal1 & Rohstoff v. Donaldson Inc and Douglas v Hello! to support his arguments. Further, he states that given so many cases have been cited as being judged on the grounds of Misuse of Private Information as tort, all those citations could not be errors and that he is therefore led to conclude that:
"the tort of misuse of private information is a tort within the meaning of ground 3.1(9)."
As previously stated, this is the first new tort to be officially created under English Law in 80 years and it could not relate to a more topical issue than the Misuse of Private Information. In challenging the petition to file suit in England, Google have effectively forced the creation of a new tort which is likely to come back and bite them in the future. One of the most difficult obstacles Britons have had to overcome with regards to legal challenges on the grounds of privacy has been this issue of relevant tort in order to successfully make a claim for remedies as most relevant regulations require actual loss be proven. In the case of issues relating to online privacy, such as the Misuse of Private Information, Interception of Communications, Behavioural Profiling etc. this loss is almost always impossible to illustrate which has made bringing claims against such actions fruitless. However, with this new tort, the obstacles are far easier to overcome and we could see this judgment being used frequently in the future against not just Google but many of the other multinational tech giants that regularly make non-consensual use of their users' private information. This can only be seen as a significant blow for the online advertising industry which for so many years has operated on an implied consent basis angering privacy advocates, regulators and the public alike. To call this an "own goal" would be a monumental understatement.
Google also tried to argue that the data they used was not Private Information because it was "anonymous" they used the argument:
"Browser-Generated Information was not private. It is anonymous. The aggregation of such information sent to separate websites and advertising services cannot make it private information. One hundred times zero is zero, so one hundred pieces of non-private information cannot become private information when collected together."
Mr Justice Tugendhat gave Google's argument short shrift responding with:
"I find this a surprising submission to be made on behalf of Google Inc. It would not collect and collate the information unless doing so enabled it to produce something of value. The value it produces is the facility for targeted advertising of which the Claimants complain, and which yields the spectacular revenues for which Google Inc is famous."
In one ridiculous argument, Google even attempted to assert that the serving of advertising was a right under Article 10 of the Convention on Human Rights as Freedom of Expression; one can only assume that they tried such a tactic because often in cases where Article 8's Right to Private Life and Article 10's Freedom of Expression clash, the Article 10 argument frequently wins the day - thankfully Mr Justice Tugendhat had an answer to that also:
"Until this judgment was circulated in draft I had not understood that Google Inc had, in the present case, suggested that its Art 10 rights, or any other Convention rights, are engaged. However, at that point Mr White drew my attention to a single sentence in his skeleton argument which reads: "Claims for misuse of private information/breach of confidence raise precisely the same Article 8lArticle 10 issues as libel claims". And he added that the Art 10 rights of Google Inc "plainly are [engaged] by reason of its right to disseminate information to others (for example in the form of advertising) and the right of internet users to receive that information". I do not accept that the Browser Generated Information collected by Google Inc, or the information (derived therefrom) that it sells to its customers, is advertising. Rather I understand it to be a form of commercial information which ultimately facilitates advertising by others, and which is collected and communicated to further the private interests of Google Inc. Accordingly, the weight that can be attached to it as speech is less than that which attaches to political, journalistic or artistic expression, and is unlikely to be found to weigh significantly in the balance against the Article 8 rights relied on by the Claimants: see Gatley para 15.18(9)."
The above citation is a fine example of something we repeatedly see throughout the judgment and that is, how insightful Mr Justice Tugendhat is on these issues of technology. In all my years of reading legal judgments (of which there are many) I have always found them cumbersome and illustrating an acute lack of understanding of the technologies they are ruling on - this 34 page document however, is one of the most comprehensive illustrations of how technology focused judgments should be made, that I have ever seen. For the first time in two decades, I genuinely enjoyed reading the judgment - Mr Justice Tugendhat has created a much needed ray of hope for the pursuit of justice against the Goliath-like global tech corporations which so often see law as something they can buy through political donations, lobbying or insignificant fines.
But it doesn't stop there - Google tried and failed time after time with what can only be seen as desperate arguments to avoid facing a case in the English courts. They argued that the case wasn't serious enough - Mr Justice Tugendhat disagreed; they argued that the cost would outweigh any likely penalties (in "the game is not worth the candle" paragraphs) and Mr Justice Tugendhat disagreed; they threw in everything they could think of and Mr Justice Tugendhat disagreed with most of it. The end result is that the High Court have now granted permission for the case to be filed in England and I hope the Claimants are celebrating tonight because it is certainly a judgment worthy of revelry - and is a clear testament to the hard work and professionalism of the Olswang LLP team.
Google made an immediate application to the High Court to appeal the judgment and were refused so now under Civil Procedure Rule 52.3(3) Google will have to file for an appeal at the Court of Appeal. If the Court of Appeal uphold the High Court's ruling Google may seek to take the case to the Supreme Court although there is no guarantee that the Supreme Court would grant such a hearing.
So the battle is not yet won, but consumers certainly won this significant skirmish leaving Google to retreat to Mountain View to lick their wounds with the hope that the Court of Appeal will show them mercy. If they fail, the legal landscape for Privacy cases in England and Wales will be forever more treacherous for those who choose to ride roughshod over privacy.
Access an HTML version of the judgment including links to relevant case law at Bailii.