The Court of Appeal will consider next week whether Google should face legal action in the UK for deliberately bypassing security settings to track people using Apple’s Safari browser.
The case relates to the discovery back in 2012 that Google had bypassed security settings on Apple’s Safari browser to track users on the web, even though they had not given Google permission to do so.
Google has already paid fines of over $40m relating to this incident in the US, but in the UK it has fought attempts to impose similar legal sanctions.
Last year, it said it should not face legal action in the UK as it is a US company. This argument was dismissed by judge Justice Tugendhat at the High Court in January but Google soon filed a request to appeal the decision.
Now, Google is planning to argue that because UK consumers were not financially harmed by its tracking activity, it does not have a case to answer.
However, the ICO – the UK’s data protection watchdog – has now weighed in to the dispute at the last minute, submitting documents to the court arguing that there are grounds to consider the case.
The document, which has been seen by V3, shows that the ICO argues the case has serious implications around the Data Protection Act (DPA), specifically the section that covers “compensation for failure to comply with certain requirements”.
“The commissioner wishes to make submissions that there are serious issues to be tried… on whether the interpretation of damage under section 13 DPA should include non-pecuniary [financial] damage,” the submission reads.
In a statement to V3, the ICO said its involvement was focused on the specifics of how the DPA should be interpreted in the case.
“The ICO’s intervention in this case is limited to assisting the court in interpreting the Data Protection Act, which this office is responsible for regulating. The key area we are intervening on is the definition of personal data.”
Nevertheless, Dan Tench, a partner at legal firm Olswang, which is bringing the case against Google on behalf of three claimants, welcomed the ICO’s submission.
“This is a crucial test of whether Google can be held to account in the English courts or whether there is only justice for a privacy breach where the consumer loses money.”
Marc Bradshaw, one of the three claimants, also welcomed the involvement of the ICO and said he hoped information commissioner Christopher Graham would see first hand in court how Google is attempting to avoid justice.
“We truly hope that the information commissioner will witness for himself in court Google’s vast array of technical and legal excuses for its actions and its desperate attempts to avoid answering to English courts,” he said.
“Then he will realise that he must act to prevent any further wrongdoings by this monopolistic giant. Every citizen of this country has privacy rights and Google infringes those fundamental rights whether it costs us cash or not.”
V3 contacted Google for comment on the forthcoming case but had received no reply at the time of publication.