Vidal -Hall & Ors v Google Inc

For service out of the jurisdiction, misuse of private information is capable of constituting a tort. Recoverable damage for that tort is not confined to physical or economic harm and may include distress and anxiety. A claim for breach of confidence remains distinct and is not a tort for this purpose.

At the permission stage, claimants need a good arguable case that the claim falls within the relevant gateway, a serious issue to be tried, and a showing that England and Wales is clearly or distinctly the appropriate forum. The court may permit reliance on an additional gateway where the overriding objective supports doing so. The claimants’ claims met those requirements, but their proposed injunction and reliance on property and restitution gateways did not.

The claimants alleged that Google Inc used cookies to track and collate information about their internet use through the Safari browser, without their knowledge or consent. They brought claims for misuse of private information, breach of confidence and breach of the Data Protection Act 1998, seeking damages, compensation, an account of profits and injunctive relief.

Google Inc was incorporated and principally based in California. The claimants obtained permission to serve the proceedings out of the jurisdiction. Google Inc applied to set aside service and the permission order, arguing that the claims did not fall within the relevant gateways, that there was no serious issue to be tried, and that England was not the appropriate forum.

1. Disposition. The application to set aside service was refused in relation to the claims for misuse of private information and the DPA claims. The claimants’ application to rely on grounds 3.1(11) and 3.1(16) was dismissed.
2. An injunction is available only where there is an appreciable future risk of interference with the claimant’s rights. Evidence of unrelated conduct affecting other individuals did not establish such a risk in this action. The claimants therefore failed to satisfy ground 3.1(2).
3. Breach of confidence is not a tort and did not fall within ground 3.1(9). Misuse of private information is, however, a tort within that gateway. The modern cause of action protects private information independently of the historical equitable action for breach of confidence.
4. Damage under ground 3.1(9)(a) bears its ordinary meaning. It is not limited to physical or economic harm. Distress and anxiety are capable of being recoverable damage in a misuse of private information claim. The court considered that publication to screens in England could also satisfy ground 3.1(9)(b), although it was unnecessary to decide that point.
5. The claimants had a sufficiently arguable case that the information displayed through targeted advertising was private and personal data. Identifiability could arise through third parties viewing the screens, even if Google’s internal records were segregated from identifying information. There was a serious issue to be tried.
6. The claimants were permitted to rely on ground 3.1(9) for the DPA claims despite raising it late. The overriding objective favoured determining the valid jurisdictional basis without requiring a fresh application. The court declined to decide finally whether Data Protection Act 1998 section 13 permits compensation for distress without pecuniary loss, but expressed the preliminary view that non-pecuniary damage could be included.
7. England and Wales was clearly the appropriate forum. The claimants lived here, the issues concerned English law, and resolving those issues in an English court would avoid the cost and uncertainty of treating English law as a question of fact in a foreign court.
8. The court declined to permit reliance on ground 3.1(11), because whether the information constituted property raised a difficult legal question requiring fuller argument. Ground 3.1(16) was also refused because the restitutionary claim was insufficiently particularised and the asserted foundation was inadequate.