Developers of software collating browser-generated information (BGI) and end-users of BGI should take note that UK courts have indicated that “anonymous” BGI might be considered personal data and subject to data security rules.
Moreover, the Court’s decision that Claimants who have suffered distress and no financial loss may bring claims for breach of the data protection legislation is entirely novel and is likely to lead to a flood of low fiscal value but time-consuming data protection breach claims.
This development will have implications for Israeli software companies collecting or using BGI in the UK and, in particular, for Israeli software developers that might hope to get products linked to BGI into Europe.
Google’s 2009 tribute to the 40th anniversary of Sesame Street - the loveable cookie monster devouring a google-shaped cookie - is a peculiarly on-point illustration of Google’s internet cookies battle.
The claims against Google for using cookies to track online behavior without the knowledge or consent of Apple Safari users are novel on various levels including that the Claimants do not allege any financial loss and claim for acute distress and anxiety only. The ramifications for the concept of private information are very significant and that is where the topic of Marks & Spencer underwear becomes relevant.
It can be quite unnerving for information from a website you have previously visited to suddenly appear on an entirely un-related site my own experience has been with familiar MARKS AND SPENCER outfits suddenly appearing as banners on random websites. The tracking cookies which were used by Google, despite the Claimants’ Apple Safari settings purportedly blocking cookies, caused advertisers’ targeted advertising to appear on the Claimants’ screens. The advertising was and could be seen by third parties and that was the root of the Claimants’ distress. In order to obtain permission to serve out of the jurisdiction on Google (established in the US) the Claimants had to demonstrate that there was a good arguable case that BGI would constitute personal data. Effectively, therefore, the issue was whether or not someone’s preference for MARKS AND SPENCER underwear was private information.
Google argued that the information was not personal data. It was anonymous.
The Court of Appeal held that it was clearly arguable that BGI constituted personal data. The fact that users are not named was immaterial because the data itself was enough to single any user out by telling Google (i) the unique ISP address of the device - a virtual postal address; (ii) the websites visited; (iii) when those website were visited; (iv) potentially, the location of the user; (v) the browser's complete browsing history; and (vi) when the user is online.
The substantive case will now proceed to the High Court unless a further appeal by Google to the Supreme Court intervenes.
Data Protection Conclusions
The categorization of the data will determine whether or not the provisions of the UK data protection legislation are engaged and whether or not misuse of the information would fall into the tort of misuse of private information.
A final decision that BGI is personal data is likely to widen the data security legislation net to those whose software filters BGI and the advertisers using the results. The most important of the data protection principles for direct marketers is that information is processed fairly and lawfully. Provision of a standard privacy notice alongside a mechanism for obtaining consent to processing will in most cases suffice.
The removal of the financial loss barrier for data protection claims means that claims may be brought for emotional distress alone. This is likely to have important ramifications for how breach of data protection claims are litigated in the future.
Beware - as presaged by Google’s Sesame Street tribute doodle - the Cookie Monster may be on the attack.
The author is a lawyer in Asserson Law Offices (ALO), the largest foreign law firm in Israel. Although it is based in Tel Aviv, ALO works under English law in commercial and property transactions and disputes
Published by Globes [online], Israel business news - www.globes-online.com - on June 16, 2015
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