We previously commented on the case of Vidal Hall v Google Inc. In that case the three Claimants were users of Apple Safari internet browsers. They alleged that the Defendant, Google Inc., misused their private information by tracking and collating information relating to their internet usage on the Apple Safari internet browser without their consent or knowledge.

The Claimants claimed damages for distress. They had suffered no pecuniary loss as a result of the alleged misuse of their private information.

The Claimants’ case alleged that under the law there existed a tort (i.e. actionable wrong) of wrongful interference with privacy that is separate and distinct from a breach of confidence. The characterisation of the claim was crucial is it had implications regarding jurisdiction.

The background was an earlier decision on another case1 where the Court of Appeal had confirmed that breach of confidence is a breach of trust and not a tort.

The Court of Appeal decision

The case has now been considered by the Court of Appeal2. The issues included:

(a)    whether wrongful interference with privacy was to be characterised as a tort separate and distinct from breach of confidence; and

(b)    whether there was a right to damages for distress where there is no pecuniary loss. The background was the inconsistency between the applicable UK law (Section 13(2) Data Protection Act 1998) which only provides for compensation for distress where there is also pecuniary loss and the EU Directive (95/46/EC) which makes no such restriction.

The Court of Appeal upheld the original decision and in doing so confirmed that there was a tort of wrongful interference with privacy.

Leave has been given for an appeal to the Supreme Court. However this leave is only in respect of the damages question. The question of the characterisation of wrongful interference with privacy as a tort is not the subject of appeal and thus seems to be concluded.

1 Kitetechnology BV v Unicor GmbH Plastmaschinen [1995] FSR 765 at 777-778
2 Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311

Categories: Tort

Anthony de Winton

Anthony is a consultant for Pitman. He gained a wide breadth of international legal experience in house with Kraft Foods. This experience included responsibility for the Middle East & Africa region and latterly providing legal support to the international supply chain and procurement organisation.


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