UK consumers’ access to justice for data abuse hangs in the balance

April 30, 2021
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Dr. Rebecca Rumbul, lead claimant for The Privacy Collective, reflects on the all-important Lloyd v Google case heard by the Supreme Court this week.

The curtain has now come down on proceedings, and we are left to anxiously muse which way the verdict will go… 

Sitting on the virtual sidelines, watching the cogs of justice at work in the highest court of the land was a fascinating, if at times frustrating, experience…

scales-of-justice

At The Privacy Collective, we have been avidly glued to the Supreme Court livestream over the last couple of days as we followed the landmark Lloyd v Google case. 

The curtain has now come down on proceedings, and we are left to anxiously muse which way the verdict will go. It has huge implications for my own case against Oracle and Salesforce, and it will feel like a long wait for the publication of the ruling over the next few weeks or months.

Sitting on the virtual sidelines, watching the cogs of justice at work in the highest court of the land was a fascinating, if at times frustrating, experience.

There were a few really important points which were, in my opinion, quite quickly skimmed over, while others meandered at length through subjects as diverse as shipping and the Covent Garden Market circa 1901. 

Certain Justices implying that the mere fact a litigation funder is involved in a claim devalues its validity was extremely disappointing to hear. It’s easy for a Lord or Lady to say that…

Some issues appeared to be sticking points for the Justices, with a dim view taken from some on the use of professional litigation funders to financially support class actions.

Certain Justices implying that the mere fact that a litigation funder is involved devalues the validity of the claim was extremely disappointing to hear.

It’s easy for a Lord or Lady to say that, but for people like me, without any personal wealth of my own, I would simply never be able to take on powerful tech companies without a litigation funder shouldering the financial burden of bringing such a case.

Litigation funders provide access to justice for a lot of people that would otherwise be excluded, especially when it comes to large representative actions. Without access to this funding, it would only be the very wealthiest individuals who could hope to match the legal budgets of the world’s largest companies.

And, unsurprisingly, there are very few of the very wealthiest individuals doing the day-to-day work on protecting consumer data rights, as I do in my role as Head of Research at mySociety, which is required to fully appreciate the threat to society from unimpeded data abuse. I very much hope that the Supreme Court appreciates this.

Another point that was given much attention was the idea of whether in the case of illegal data collection and subsequent misuse, there is actually any harm to the victims.

Lloyd’s team argued eloquently that the loss of control of personal data was indeed a harm in itself, however, counter-arguments were made that this form of loss was “trivial” without evidence of further substantial harm beyond the loss of control. 

And much time was taken up musing about the potential variations in harm, and the morality aspect of search and browsing activity, and how none of those would be equal. This distracted from the real issue.

The monetisation of our personal data through the construction of psychological profiles to be repeatedly sold to ad buyers, and built from the very data which has been ‘trivially’ taken without consent in this case, is far, far from trivial! 

The reselling of personal data is the foundation of trillion-dollar businesses. The insights into our lives and personalities gained from analysing this data are used to keep us hooked to social feeds and clicking ads. Google has just reported monster revenues of $55.31 billion over the first three months of 2021, the majority of which comes not simply from selling adverts or media space, but the secrets to how to get us to click on those ads. If someone steals something from you but you don’t notice, that doesn’t negate the crime. At the very least, there’s harm in the fact that users’ privacy has been unlawfully invaded for financial gain.

Google’s apparent claim that there’s a lack of actual harm in data abuse is, in our opinion, a pernicious attempt by the defendant to argue that consumers who claim damages for data abuse are money-hungry opportunists who just want something (compensation) for nothing. I trust that it was as obvious to the Court that this argument is based on a false premise, as it felt to me.

Hugh Tomlinson QC, acting for Lloyd, explained clearly that the nature of the content being tracked is almost inconsequential, and that it is simply every individual piece of data that can be used to improve an individual profile that is equally valuable. I dearly hope that the Court was not distracted by some of these ‘red herring’ discussions.

On a more personal note, watching these proceedings really did bring it home how little diversity there is in this space. Justice is supposed to be for everyone, but these proceedings felt very elite and exclusive.

It was heartening to see strong support for consumer rights in the form of representation from the Information Commissioner’s Office. Their legal representative Gerry Facenna QC went to pains to clarify important technicalities and explain that good data protection and personal privacy regimes were not in any way incompatible with technological innovation or digital progress.

I hope this well communicated and expert input from the ICO provided reassurance to the Court that being pro-privacy and pro-innovation are not mutually exclusive positions, and that processing personal data lawfully and with consent in no way hinders the economic potential of private industry.

On a more personal note, watching these proceedings really did bring it home how little diversity there is in this space. Justice is supposed to be for everyone, but these proceedings felt very elite and exclusive.

Much like me, Lloyd is representing a class of people from all walks of life, yet this process is very distant from the average internet user who, like me, might be female, or non-white, or not speak in the Queen’s English.

While I can’t do much about the composition of the Supreme Court, I am proud to be one of the very few non-white women leading a significant legal challenge against big tech and hope that it signals to others that demanding justice is something that we should all be able to do.

It will be a nail-biting few months waiting for the Lloyd v Google verdict, but in the meantime we will continue to rally support behind our case and send positive thoughts out into the universe for a Lloyd victory!

About Rebecca Rumbul

Dr Rebecca Rumbul is an internationally recognised expert in democracy, digital and information rights. 

As Research Director at global NGO mySociety, she is a lead convenor in digital civics and consults widely on parliamentary digital development with international development agencies. 

As a Non-Executive Director of the Advertising Standards Authority UK, she has a keen interest in advertising regulation and the growing use of AdTech, and as Trustee of the Hansard Society, Rebecca works to promote excellence in legislation and governance. 

With previous experience of working in Data Protection at the Information Commissioner’s Office, Rebecca also holds significant expertise in the regulation of personal data. As lead claimant for The Privacy Collective, Rebecca is committed to using legal routes to hold big tech properly to account for abuses of personal data, on behalf of all those affected. 

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