Google his trying to halt a British court challenge over alleged secret tracking of internet users who claim their privacy has been breached.
The internet giant is challenging a decision by a High Court judge in January that allowed Google to be sued in the UK for allegedly bypassing security settings to track the online browsing of Apple's Sarafi users and target them with personalised advertisements.
The landmark case is being brought by a group of more than 100 people known as Safari Users Against Google’s Secret Tracking, which includes editor and publisher Judith Vidal-Hall as well as IT security company directors Robert Hann and Marc Bradshaw.
Campaigners: IT security company director Marc Bradshaw (left) and editor and publisher Judith Vidal-Hall (right) are part of a group which claims Google bypassed security settings to track their online browsing
They say Google’s 'clandestine' tracking and collation of internet usage between summer 2011 and spring 2012 has led to distress and embarrassment among UK users.
If they win, it potentially leaves Google facing claims from millions of people who were using Apple devices in 2010.
Today, lawyers for Google told the Court of Appeal that Mr Justice Tugendhat in the High Court impermissibly failed to apply binding legal authority on two issues of law which were of general importance in the field of privacy and consequently erred in declaring that the court had jurisdiction.
They also say that he got it wrong in several respects in his assessment of whether there were serious issues to be tried.
'In the result, the judge wrongly dismissed the appellant's application to set aside service of proceedings out of the jurisdiction, and his ruling should be reversed,' Antony White QC told the Master of the Rolls Lord Dyson, Lord Justice McFarlane and Lady Justice Sharp.
Challenge: Google is challenging a decision by a High Court judge that the UK courts were the 'appropriate jurisdiction' to try claims brought by the group, known as Safari Users Against Google’s Secret Tracking
Hugh Tomlinson QC, for the group, said that the judge was right to hold that misuse of private information was a tort - a civil wrong - for the purposes of the rules governing service out of the jurisdiction and that the case raised important issues concerning the gathering of information by an international internet company.
Google says that dissatisfied users of the Apple Safari internet browser should have launched their claims for misuse of private information in the United States, where Google is based.
Dan Tench, a partner at law firm Olswang which is representing the claimants, said: 'Google has already failed in the High Court to prevent the claimants from bringing this case in England.
'It felt that California was a better place for such a claim, a venue that would clearly be beyond the means of many British people.
Argument: Google's lawyers told the Court of
Appeal that Mr Justice Tugendhat in the High Court failed to apply binding legal authority on two issues of law, and so erred in declaring the court had jurisdiction
'This is why we argued, successfully, that the breach took place here and so the case should be brought here. Google's now appealing against the decision.
'It's arguing that if people have not lost out financially from a privacy breach then they should not be allowed to sue.
'We stand by the decision of the earlier court that declared, for the first time, that the breach of privacy is a tort thereby opening up Google's transgressions to English courts. The regulator, it seems, agrees. It has asked to intervene in the case and supports our position.'
The Information Commissioner, Christopher Graham, has intervened in the landmark case by making written submissions to the Court of Appeal, arguing that there is a 'serious issue' to be tried.
Mr Graham has received permission by the court to make submissions on two specific elements of the claim - whether there is a serious issue to be tried as to whether the information at issue is 'personal data' under the Data Protection Act 1998 (DPA), and whether there is a serious issue to be tried as to whether the meaning of 'damages' under section 13 DPA includes non-monetary loss.
In his submissions, which have been handed into the court, he argued: 'There is a serious issue to be tried on the question of whether the BGI data amounts to 'personal data.'
'There is a serious issue to be tried on the question of whether 'damage' in s.13 includes non-pecuniary damage.'
Mr Graham, said that the information gathered by Google, regardless of whether they store people's names, is 'personal data' because it allows the company to target individuals with tailored advertising.
He said: 'Browser-Generated Information (BGI) in the hands of the Defendant is itself 'personal data' for the purposes of the DPA.
'This is because it comprises both detailed information about websites accessed from a particular device, in other words a user's browsing history and information derived from use of the Defendant's DoubleClick cookie.'
He added this allows Google to 'to recognise that the user of that device is present online' and 'to target adverts at the user based on inferences about their interests derived from analysis of their browsing history.'
He continued: 'There must be an effective remedy for breach of an individual's data privacy, even where the breach merely gives rise to distress.'
The claimants say that this case has 'enormous' significance to the British public and if Google are successful in its appeal they would be free to use people's personal information for whatever commercial gain they chose.
Claimant Mr Bradshaw said: 'This is a crucial case for British Internet users. It arose when Google ignored the wishes of people using Apple's Safari web browser not to be tracked and tracking cookies were placed on their laptops.
'We believe that if we choose not to be tracked online, Google should respect our wishes. We feel it entirely wrong that Google could track people online even when they did not seek to use Google's services at all.'
Ms Vidal-Hall, added: '170 people have asked to join this case. It clearly has enormous relevance in that British people should have some means to hold Google to account.
'Unless we are successful, Google will be free to use Britons' personal information for whatever commercial purposes it chooses and no matter how that information was obtained. That would be dangerous for society and would render us second class citizens in comparison to those in the United States, where Google has paid a fine for the Safari security breach.'
The hearing was adjourned until a date to be arranged in the new year for further argument on the remaining issues.
After January's ruling a Google spokeswoman said: 'A case almost identical to this one was dismissed in its entirety three months ago in the US. We still don't think that this case meets the standards required in the UK for it to go to trial.'
But Mr Tench said: 'The Court of Appeal hearing will decide whether British consumers actually have any right to hold Google to account in this country.
'This is the appropriate forum for this case - here in England where the consumers used the internet and where they have a right to privacy.'
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