Lloyd v Google. More on the tort gateway and ‘damage’ under data protection law.

Update 7 October 2022 See Christopher Knight analysis here.

Update 6 October 2022 Sánchez-Bordona AG today opined in C-300/21, in a direction which largely would seem to follow the UKSC update 4 May 2023 and the CJEU has  today followed: under the GDPR, the mere infringement of its provisions is not sufficient to confer a right to compensation, however once damage other than loss of control over the data has been established. compensation for non-material damage must not be made subject under national law to the condition that the damage suffered by the data subject has reached a certain degree of seriousness.

The UK Supreme Court in Lloyd v Google [2021] UKSC 50 held a few weeks back. It allowed the appeal, meaning the Court of Appeal‘s judgment is no longer good law and the High Court‘s approach is now the rule. The judgment essentially means that loss of control over private data is not considered ‘damage’ within the data protection Act 1998. The issue is one of statutory interpretation: on its proper interpretation, the SC understands the term “damage” in s. 13 to mean material damage (financial loss for instance) or mental distress, and not just unlawful processing. Loss of control therefore may still play a role in the common law tort of misuse of private information, and ‘damage’ was of course also considered flexibly in the context of consequential losses (Brownlie).

On class actions, the SC’s judgment is a set-back, too, with the judgment [80] holding

What limits the scope for claiming damages in representative proceedings is the compensatory principle on which damages for a civil wrong are awarded with the object of putting the claimant – as an individual – in the same position, as best money can do it, as if the wrong had not occurred. In the ordinary course, this necessitates an individualised assessment which raises no common issue and cannot fairly or effectively be carried out without the participation in the proceedings of the individuals concerned. A representative  action is therefore not a suitable vehicle for such an exercise.

Geert.