LONDON, Dec. 5, 2014 /PRNewswire/ — The UK’s privacy regulator, the Information Commissioner, is to make a dramatic final hour intervention in an English Court of Appeal hearing in which Google will seek, once again, to prevent consumers from suing it in England. In its legal filings Google argues that if consumers do not lose out financially from a privacy breach, they should not be allowed to sue it.

The Information Commissioner, which regulates internet companies and the use of private data, has asked the Court of Appeal to intervene in the case. It marks the first step by the regulator to help British consumers hold Google to account.

In a submission to the court, lawyers for the Commissioner wrote: "the Commissioner wishes to make submissions that there are serious issues to be tried… on whether the interpretation of damage under section 13 DPA should include non-pecuniary damages" – whether Google’s argument is legally correct. 

Google has argued that a decision in January by High Court Judge, Mr Justice Tugendhat, to allow the consumers to sue the company in England was wrong, as there is "no serious issue to be tried" given that the "alleged incursion into the private life by [Google’s] use of cookies does not reach a level of seriousness to engage Article 8 [of the Human Rights Act 1998]". It argues that the claim lacks merit as consumers suffered no financial harm.

Marc Bradshaw, one of three claimants in the case, welcomed the Information Commissioner’s intervention: "We are delighted to see this action by the Commissioner. We’ve written to his Office several times urging him to get involved and help British consumers to protect their right to privacy. Google may be a massive company with huge resources, but it must treat consumers with respect by abiding by their wishes and not abusing their right to privacy. We truly hope that the Information Commissioner will witness for himself in court Google’s vast array of technical and legal excuses for its actions and its desperate attempts to avoid answering to English courts. Then he will realise that he must act to prevent any further wrongdoings by this monopolistic giant. Every citizen of this country has privacy rights and Google infringes those fundamental rights whether it costs us cash or not. It’s typical for Google to argue that it’s all about money. "

Dan Tench, the Olswang partner who represents the claimants, said: "We are very pleased that the Information Commissioner has intervened in this case. This is a crucial test of whether Google can be held to account in the English courts or whether there is only justice for a privacy breach where the consumer loses money. Already a High Court Judge has said that it is time for Google to answer the claims substantively."

Next Monday, Google will call on the Court of Appeal to dismiss the case, which is being brought by three members of the Google Governance Campaign as a test case.  170 potential claimants have registered interest, and millions of Apple users across the world could potentially have a claim.