A GDPR & Data Protection Advisory Note.
Published: 11/11/2019 Last amended: 11/11/2019
• Anyone who is victim of data breach is entitled to claim compensation
• No need to suffer any financial loss or distress
• Compensation is for the fact of the breach alone
On 2 October 2019 the Court of Appeal made a landmark decision (in the case of Lloyd v Google). This case has several significant features:
- There are, potentially, several million claimants
- The total compensation claim is estimated to be between £1-£3bn
- It does not involve actually identifying all the claimants ‘up front’. (The plan is to litigate first and secure the compensation pot, then invite people to come forwards to demonstrate that they are entitled to some slice of it).
However, this Note will focus on is what the Court decided about what those whose data has, allegedly needed to show in order to be entitled to any damages (compensation).
No loss or harm needed
In this case it’s not being claimed that anyone has suffered any financial loss or other concrete harm. In fact, it’s not even alleged that anyone has suffered any distress or anxiety whatsoever. Compensation is being claimed simply for the fact of the alleged breach alone.
The Court decided that data is ‘property’ which had a value and that where a data breach causes someone to lose control over their personal data/property they are entitled to be compensated for the loss of value of that data/property – regardless of any loss or distress.
This decision doesn’t mean that every data breach automatically entitles anyone to be compensated. The Court confirmed the de minimis threshold applies and that threshold would exclude a claim arising from an accidental one-off data breach that was quickly remedied.
This decision is a very big deal and can be summarised as: ‘You breach, you pay’. Google are appealing to the Supreme Court.
This note, which is based on various sources including the ICO, is for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such.