One of Britain's most senior judges has warned Google over its attempts to squeeze out of a £3bn data protection lawsuit by claiming some people might have consented to the adtech monolith's lawbreaking.

The warning came as barrister Anthony White QC argued Google's case in the Court of Appeal this morning. One of White's arguments against a not-quite-class-action lawsuit brought against Google on behalf of, allegedly, 4.4 million iPhone users, is that some people might have actively wanted to receive targeted ads.

As we reported yesterday, the Safari Workaround used by Google to plant ad-tracking cookies on iPhones in the early 2010s was explicitly designed to bypass Apple's privacy controls in Safari.

White's legal argument rested on the fact that Richard Lloyd's legal team, which is claiming between £1bn and £3bn in total from Google under the Data Protection Act 1998, has not asked around to find out if any of its estimated 4.4 million potential claimants were actually OK with receiving targeted ads.

If they were fine with it, White argued, then it wouldn't be right for them to be paid compensation by the adtech firm.

He also argued a legal point that damages should not be payable in the scenario that Lloyd and co have put forward. In written arguments to the court, White said damages only ought to be payable to members of Lloyd's "representative class", comprising around 4.4 million people, if a breach of privacy had a demonstrable "significant or material" negative effect on individuals.

You still broke the law, though

In a rather lengthy judicial observation, Sir Geoffrey Vos, the Chancellor of the High Court (one of Britain's most senior judges), responded by saying: "The key point is can you get compensation for a data breach, alone, for what Google did wrong, alone, even if distress is not caused? And, confusingly, saying, 'Well, we can't find a way of giving a proper figure to that because we'd have to give the same to everybody' doesn't really help the answer to that argument."

He continued, addressing White:

The corollary of the argument you put is, you're entitled in this situation - you're entitled to take people's data, deal with it without their consent in violation of the [EU Data Protection] directive without paying any damages, because one of two reasons: no tariff is available; or because some of the people who claim might not have suffered any distress, or upset, or anything else. But it's sort of, I think - I baulked at, is the way I put it, which is 'you're entitled to do what you did, which is a clear and in some cases very serious wrong, and because of the happenstance that some people may not have been damaged or the happenstance that the only way of compensating it might be by some unconventional way, that you completely get away with it'.

Later, still addressing White, the judge said: "Putting your argument, it would be perverse to compensate them even a nominal amount when they have actually benefited from the infringement of their right. I think what you can't say is there's no meaningful infringement."

Google's barrister later observed that Lloyd's lawsuit was an "attempt to pre-empt what is the province of the legislature," arguing that although current EU law requires Parliament to introduce "opt-out class actions brought in data protection law without the authority of the data subject," MPs haven't yet got round to doing so.

Judgment from the Court of Appeal is due later this year. If it overturns the High Court's previous ruling that Google doesn't have to stump up billions for breaking data protection laws, expect lots of aggrieved Apple fanbois to come flooding out of the woodwork. ®