English High Court Reserves Judgment in Google case

A High Court judge has reserved  judgment on whether Google should face English justice in a landmark privacy case.

Mr Justice Tugendhat  listened to legal argument for a day-and-a-half, as Google tried to avoid a full trial before the UK courts.

A group of claimants, known as Safari Users Against Google’s Secret Tracking, has accused the search giant of bypassing security settings on Apple’s Safari internet browser in order to track their online browsing and target them with personalised adverts.

The matter has already been dealt with in the United States in relation to American victims, but British Safari users say that Google has had no sanction in the UK and that they have been left with no option but to sue.

Despite generating hundreds of millions of pounds in England, having large offices here, and staff based here, Google told the court that the claim should have been brought in the United States, where it is based.

Antony White QC, acting on behalf of Google, told the court: “It’s not enough to say ‘the claimants are here and they would like to sue here.  It’s not a starting point where the claimants are, or where the claimants have their computers, or that they suffered their distress here.

“The defendants are there (in the US), its witnesses are there, its documents are there.”

The internet giant was sued for the same privacy breach in the United States in August last year, and had to pay a fine of $22.5 million to the US Federal Trade Commission for violating its order that the company would not misrepresent “the extent to which consumers can exercise control over the collection of their information.”

It did not admit to wrongdoing in the FTC case, but said the tracking was accidental. Despite this, the Attorney General of New York announced last month that the company had agreed to pay $17 million to settle charges that it secretly tracked some consumers’ activities on the internet in the United States, even after promising such tracking had been blocked.

Mr Justice Tugendhat quizzed Google’s counsel over the fine it paid in that case.

He said: “It is quite striking to have you say in one breath that there is no substantial claim and on the other, that the regulatory sanction for what was done was obviously considered very seriously.  I know $17 million is not an awful lot for a large corporation, but it is obviously meant to send a message.  If there is nothing in it, why did Google pay $17 million?”

Incredibly, even with global profits of 2.97bn (£1.84bn) for the July-to-September period, Google also argued that if the case went to trial in the UK it could last for six or seven days and cost the company up to £1.2 million, which it claimed was “disproportionate”.

Mr Justice Tugendhat asked whether this was a proper way to argue the merits of a case.

He said: “This has been referred to in a previous case, which points out that if somebody has a claim for £50, then the system of justice ought to provide a means by which a debt of £50 can be recovered.  It is no answer to a claim for a debt of £50 to say, it is going to cost you more than £50 or £500 to collect the debt.”

In seeking to have the case dismissed, Mr White also claimed that the information obtained was ‘not personal’, so Google had no obligation to keep it confidential.

He told the court: “If you have a car parked on your driveway you might get a flier through for a local garage.  It’s irritating, it’s unwanted and it is unsolicited but does it cross that threshold, my submission is that it doesn’t.

“Another example is in my inbox I get unsolicited emails every day.  There might technically be a European court action to stop that but you cannot claim damages just because of that.”

He added: “My point is a simple one.  It is really a logical point.  If the little set of browser-generated information automatically sent every time you go to a website or an advertisement is not itself private information, then it is like the 100 times nothing, as I suggest in my skeleton argument.”

However, Mr Justice Tugendhat replied: “It sounds like 100 times nothing, or it is like 100 pieces of jigsaw puzzle, any one of which is of no significance at all.  What is the answer to the real point?  This is what Google do.  This is who they are.  They trawl vast amounts of data in an extremely sophisticated and ingenious fashion in order to produce on the screen information which is in fact about the user of the screen.”

He continued: “We get it in this court, as you know as well as anyone else, in jigsaw identifications.  The fact that someone has red hair is not confidential, the fact that they have three children is not confidential, the fact that they live in Watford is not confidential.  If you start adding all these together, you very rapidly identify who the person is.”

A decision is expected in the New Year.

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The case against Google

On Monday, in a room at the High Court, a judge will consider whether Google should answer to British justice or whether it can only answer to Californian courts, as it argues.  This is what it’s all about.

Google has faced massive fines for breaching the privacy of internet users surfing on Apple’s Safari browser.  The browser makes it very easy to switch off tracking.  You click on private browsing and away you go.  It’s a handy tool if you are searching for a present for a loved one or simply don’t want to have ads based on what you momentarily review. Seems straightforward, clear and no one could ignore that, right?  Wrong. Google somehow allowed a workaround to ignore the private browsing setting.  An accident is what they apparently claim.  But the workaround meant there was no guarantee that any Safari user could browse privately.   And consumers only found out about this when a researcher at Stanford University stumbled across the breach.  The researcher, Jonathon Mayer, claims that Google exploited a feature in Safari to bypass the privacy settings which were designed to block third party cookies.

In the States, consumers’ interests were represented by  the Federal Trade Commission (FTC) which in February last year announced that Google had agreed to pay a $22.5million fine for breaching its FTC Control Order, a legal commitment enforced on Google for previous privacy violations.  In other words, because Google has repeatedly flouted privacy rights, they had to agree to a code of conduct to ensure good behaviour.  When they got caught out again, they got penalised.  

In the UK, our Information Commissioner’s Office announced it would investigate whether Google had broken UK law too.  After all, British consumers’ rights were likely to have been breached too. But after the announcement, nothing.   British consumers had to resort to the courts to protect their right to privacy.  So earlier this year, the law firm Olswang filed a claim against Google on behalf of ordinary consumers.

The battle begins on Monday, when Google will likely argue that it does not answer to English courts.  The Safari users are determined to hold the company to account here, one way or the other.