UK Court Confirms Privacy Tort And Addresses Meaning Of Personal Information

by Dentons
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On January 16, 2014, the English High Court of Justice issued reasons in Vidal-Hall v. Google Inc. relating to an appeal of a Master’s decision to allow Google to be served outside of the jurisdiction in relation to claims brought in connection with tracking and collating, information relating to the claimants’ internet usage through the claimants’ Apple Safari internet browser.

Importantly for the UK, the High Court explicitly recognized the tort of misuse of private information (at para. 70).

Perhaps more far-reaching, at least from the perspective of the ongoing debate in Canada and elsewhere concerning the boundaries of what is “personal information”, the High Court addressed the argument that the information generated by the claimants’ searches and used in interest-based advertising was not really personal information.

Spoiler alert. The court followed similar logic as the Office of the Privacy Commissioner of Canada in its online behavioural advertising guidance. The High Court held:

Was the information private?

 [115] Mr White submits that the 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.

[116] 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.

[117] The fact, if it be a fact, that Google Inc personnel do not themselves identify any of those from whom they collect the Browser-Generated Information is irrelevant. The point is whether any Claimant is identifiable. Moreover, that is to focus attention on the transfer of information from the user to Google Inc, whereas the complaint of the Claimants does not stop at that point: indeed the essence of the Claimants’ complaint is the damage suffered by the sending back to their screens of information in the form of targeted advertisements generated from the Browser-Generated Information. At the point at which the advertisement is visible on a user’s screen, the user is likely to be identifiable to a third party viewer.

[118] Not all the information that can be deduced or inferred by a person viewing a screen which shows targeted advertisements will be private information. Far from it. For example, if lawyers’ screens might show advertisements from which it could be inferred that they were lawyers, then that would, in most circumstances, not disclose information that was private (although it might be personal). But what is specific about the complaints in this case is that the information that was, or may have been, apparent from the screens was, on particular occasions, private information. The particular types of information specified in each of the Confidential Schedules is information for which each Claimant has a sufficiently strong case that that information was private.

[119] These are not generic complaints. They are complaints about particular information about particular individuals, displayed on particular occasions (even though the precise dates and times of the occasions are not identified).

[120] In my judgment the Claimants have a sufficiently good case on this point that it would be wrong to set aside the Master’s order in relation to the claims for misuse of private information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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