Google facing legal battle in the UK over Safari cookies

“This group,” says the Facebook page, “has been set up to provide information for anyone who used the Safari internet browser between September 2011 and February 2012, and who was illegally tracked by Google.” It follows news that London law firm Olswang is co-ordinating action against the search giant. Privacy campaigner Judith Vidal-Hall is one of two users leading the campaign, and on whose behalf a ‘letter before action’ has already been sent to Google. The Guardian reports, “Another 10 are preparing to launch proceedings, and plans are afoot for a group to form an umbrella privacy action.” It is thought that as many as 10 million Brits could have been affected.

Almost a year ago the Wall Street Journal reported that Google was tricking Apple’s Safari browser into accepting tracking cookies despite Safari’s built-in protections against cookies, and was thereby deceiving the users. Google subsequently admitted the accusation, but claimed it was a mistake. “We didn’t anticipate that this would happen,” responded Rachel Whetstone, Google’s senior vice president, communications and public policy, “and we have now started removing these advertising cookies from Safari browsers. It’s important to stress that, just as on other browsers, these advertising cookies do not collect personal information.”

Nevertheless, the incident led to a $22 million fine by the FTC, and a class action against Google by US users. On Tuesday last week Google filed a motion to dismiss the class action primarily because no actual injury is alleged. But now a new ‘class’ action in the UK appears to be a distinct possibility. 

It is not entirely clear what the privacy campaigners hope to achieve in the UK, where damages are more closely tied to actual loss. Privacy activist Alexander Hanff commented, “This group action is not about getting rich by suing Google, this lawsuit is about sending a very clear message to corporations that circumventing privacy controls will result in significant consequences. The lawsuit has the potential of costing Google tens of millions, perhaps even breaking £100m in damages given the potential number of claimants – making it the biggest group action ever launched in the UK.”

Olswang lawyer Dan Tench added, “Google has a responsibility to consumers and should be accountable for the trust placed in them. We hope that they will take this opportunity to give Safari users a proper explanation about what happened, to apologize and, where appropriate, compensate the victims of their intrusion.”

Alexander Hanff's Response:
Alexander Hanff has responded to Infosecurity’s queries. “As you know under UK law injury does not mean financial, or physical, it can also mean mental harm.  One could argue that there was a loss of trust which could be seen as injury – also can behavioral profiling without consent be considered injury in itself? I believe it can.” He also argues that ‘injury’ should not necessarily be the legal test, “given that Privacy is a fundamental human right as laid out by the Lisbon Treaty and the EU Covenant – any attack on human rights needs to be taken seriously and there should be legal consequences – a breach of a human right should be injury enough for a prosecution in my mind.” Hanff believes that it is time for users to act. “I hope that this action encourages citizens in other countries across Europe to take similar action because until we start to hit these companies in their wallets, the abuses will continue.”


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