Vidal -Hall & Ors v Google Inc

Factual and Procedural Background

The Claimants allege that the Defendant ("Company A") misused their private information and breached confidence, as well as statutory duties under the Data Protection Act 1998 s.4(4), by tracking and collating information relating to their internet usage on the Apple Safari browser without their consent or knowledge during the period from Summer 2011 to about 17 February 2012 ("the Relevant Period"). They seek damages, compensation, and other relief.

The Claimants include a self-employed editor and publisher, and two company directors in IT-related fields, all resident in England and Wales during the Relevant Period and users of various services provided by Company A.

Company A operates a well-known search engine and other services worldwide, which are provided free to users by collecting and processing user information to sell targeted advertising space.

Procedurally, the Claimants were granted permission to serve the claim form on Company A outside the jurisdiction, specifically in California, USA. Company A applied to the court to declare that the English court lacks jurisdiction to hear the claims and to set aside the service and the earlier permission. The court must decide whether to grant Company A's application, which, if successful, would require the Claimants to bring their claims in the USA or elsewhere.

Legal Issues Presented

1. Whether the English court has jurisdiction to try the claims against Company A given the requirements for service out of the jurisdiction under the Civil Procedure Rules and Practice Direction 6B.
2. Whether the claims for misuse of private information, breach of confidence, and breach of the Data Protection Act 1998 fall within the grounds permitting service out of the jurisdiction.
3. Whether the claims constitute torts for the purposes of the relevant rules.
4. Whether the damage alleged (distress and anxiety) qualifies as recoverable damage within the jurisdiction.
5. Whether England and Wales is clearly the appropriate forum for trial of these claims.
6. Whether the Claimants can rely on additional grounds for service out of the jurisdiction introduced late in the proceedings.

Arguments of the Parties

Claimants' Arguments

• Company A tracked and collated private information from their Safari browsers without consent, causing distress and anxiety.
• The claims fall within grounds 3.1(2) (injunction), 3.1(9) (claims in tort), and later sought to rely on grounds (11) and (16) for service out of jurisdiction.
• The information collected qualifies as personal data under the Data Protection Act and EU law, engaging their rights under Article 8 of the European Convention on Human Rights.
• There is a serious issue to be tried and England is the appropriate forum given their residence and the nature of the claims.
• There is a reasonable prospect of an injunction being granted due to Company A’s alleged institutional disregard for privacy.
• Damage in the form of distress and anxiety is recoverable under the tort of misuse of private information and potentially under the DPA.

Defendant's Arguments

• The claims do not satisfy the conditions for service out of the jurisdiction and the court lacks jurisdiction.
• The breach of confidence claims are not torts and so do not fall within ground 3.1(9).
• The damage alleged does not constitute recoverable damage as it is limited to distress without financial loss.
• There is no serious issue to be tried on any of the claims.
• England is not the appropriate forum; relevant evidence and documents are located in California.
• The Claimants should not be permitted to rely on new grounds (grounds 11 and 16) at a late stage without proper notice and opportunity to respond.
• There is no risk of future interference justifying an injunction as the conduct has ceased and Company A has destroyed relevant data.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the legal framework for service out of the jurisdiction, emphasizing the need for the Claimants to satisfy specific grounds under Practice Direction 6B and the Civil Procedure Rules. The Claimants relied on grounds 3.1(2) (injunction) and 3.1(9) (claims in tort), later seeking to add grounds (11) and (16).

Regarding ground 3.1(2), the court found no genuine prospect of an injunction because Company A had ceased the conduct and destroyed relevant data. Past misconduct by Company A with respect to other individuals or jurisdictions was not considered a basis for granting an injunction here.

On ground 3.1(9), the court analyzed whether the claims are torts. It held that breach of confidence is not a tort, following binding precedent, but misuse of private information is a tort within the meaning of ground 3.1(9). The court rejected the Defendant's submission that damage must be physical or economic, accepting that distress and anxiety can constitute recoverable damage, supported by authorities and the nature of the tort.

The court found that damage was sustained within the jurisdiction, as the Claimants viewed targeted advertisements on devices in England and Wales, constituting publication within the jurisdiction. It also concluded that the acts causing damage had a substantial and efficacious connection with the jurisdiction.

Regarding the Data Protection Act claims, the court allowed the Claimants to rely on ground (9) despite the late introduction, applying the overriding objective of the CPR to permit this in the interests of justice. The court acknowledged a controversial question of law concerning the meaning of "damage" under the DPA but deferred its resolution to trial, expressing a preliminary view favoring the Claimants' position that non-pecuniary damage is included.

In considering whether there is a serious issue to be tried, the court found that the Claimants presented a sufficiently strong case on damage and breach to avoid dismissal at this stage. It rejected the Defendant's argument that the litigation would be disproportionate and an abuse of process.

The court addressed whether the information collected was private and personal data. It accepted the Claimants' submissions that the information revealed through targeted advertisements could be private and that individuals were identifiable, at least to third parties viewing the devices. The court also accepted that Company A was a data controller and processed personal data within the meaning of the DPA.

On the question of forum conveniens, the court applied established principles and found that England and Wales is clearly the appropriate forum, given the Claimants' residence, the nature of the claims, and the complexity of English law involved. The Defendant's arguments about the location of documents were not persuasive, given electronic accessibility and the interests of justice.

The court declined to grant permission to rely on grounds (11) and (16) due to the late stage and the complexity of the legal questions involved, which required proper evidence and submissions that had not been presented.

Holding and Implications

DISPOSED OF as follows:

• The Claimants cannot rely on ground 3.1(2) (injunction) for permission to serve out of jurisdiction.
• The claims for breach of confidence are not torts and do not fall within ground 3.1(9).
• The tort of misuse of private information is recognized and the Claimants’ claims under this tort fall within ground 3.1(9).
• There is a serious issue to be tried on the misuse of private information claims.
• The Claimants are permitted to rely on ground (9) for the Data Protection Act claims, and there is a serious issue to be tried on those claims.
• England and Wales is clearly the appropriate forum for trial of these claims.
• The Claimants’ application to rely on grounds (11) and (16) is dismissed.

The direct effect of this decision is to uphold the permission to serve Company A outside the jurisdiction on the grounds specified, allowing the claims to proceed in the English courts. No new precedent was established beyond the application of existing principles to the facts. The court invited the parties to submit an agreed order reflecting these conclusions.