On appeal from:  EWCA Civ 1599
The question raised by this appeal is whether the Respondent can bring a claim against the Appellant in a representative capacity seeking compensation under section 13 of the Data Protection Act 1998 for damage allegedly suffered by a class of Apple iPhone users as a result of unlawful processing of their personal data. The claim is based on the factual allegation that, for several months in late 2011 and early 2012, the Appellant secretly tracked the internet activity of some 4 million of Apple iPhone users in England and Wales and used the data collected without the users’ knowledge or consent for commercial purposes (by enabling advertisers to target advertisements at users based on their browsing history). The DPA 1998 was in force at the time of the alleged breaches and applied to this claim.
The Respondent sought to rely on rule 19.6 of the Civil Procedure Rules, which allows a claim to be brought by (or against) one or more persons as representatives of others who have the “same interest” in the claim. The Respondent argued that the “same interest” requirement is satisfied in the present case and that this representative procedure can be used to recover a uniform sum of damages for each person whose data protection rights have been infringed, without having to investigate their individual circumstances. A sum of £750 per person was suggested which would produce an award of damages of the order of £3 billion.
Because the Appellant is a Delaware corporation, the claimant needs the court’s permission to serve the claim form outside the jurisdiction. The Appellant opposed the application on the grounds that: (1) damages cannot be awarded without proof that a breach of the requirements of the Act caused an individual to suffer financial damage or distress; and (2) the claim in any event is not suitable to proceed as a representative action. In the High Court Warby J decided both issues in the Appellant’s favour and therefore refused permission to serve the proceedings. The Court of Appeal reversed that decision. The Appellant then appealed to the Supreme Court.
HELD – The Supreme Court unanimously allowed the appeal and restored the order made by the judge.
The Court considered the scope of the representative procedure and endorsed the view that it is a “flexible tool of convenience in the administration of justice”. It is even more appropriate now in modern conditions including the development of digital technologies which have greatly increased the potential for mass harm for which legal redress may be sought.
The attempt to recover damages without proving either what, if any, unlawful processing of personal data occurred in the case of any individual or that the individual suffered material damage or mental distress as a result of such unlawful processing was unsustainable. The Court held that, in these circumstances, the claim could not succeed and permission to serve the proceedings outside the jurisdiction was rightly refused by the judge.
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