The Future Lawyer Weekly Update – w/c 10th May

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Supreme Court

Googling for the answers: Google data case goes to the UKSC

Reported by Kristy Chan  

Lloyd v Google was heard in the UK Supreme Court on the 28th and 29th of April, a case brought on behalf of an estimated 4.4 million iPhone users. The case is the first of its kind in the UK, being brought on behalf of many users in a type of ‘class action’ lawsuit more popular across the pond in the US. Richard Lloyd, former Which? charity director argues that Google exploited a ‘Safari Workaround’ to bypass Safari’s blocking of third-party cookies. Consequently, Google was able to collect user data without their knowledge or consent. 

• A brief [search] history 

Lloyd argues that Google collected data on health, race, ethnicity, sexuality and finance even when users had selected a ‘Do not track’ privacy setting in breach of section 13 of the Data Protection Act 1998 (the DPA). Reversing the decision at first instance, the Court of Appeal ruled that damages were capable of being awarded under the statute even despite the lack of financial loss and emotional distress of the 4.4 million users. 

Importantly, Lloyd brought the claim under a special procedure more commonly used in the US known as a ‘class action lawsuit’. Under the CPR 19.6(1), this requires all 4.4 million users to ‘share the same interest’, as determined by their personal circumstances.  

• One click away… 

The current case being decided by the UKSC is not about whether Google breached the DPA or not. Instead, Google is challenging the nature of the class action lawsuit: in the UK such lawsuits can only be brought on an opt-in basis, such that all those involved must consent. Thus, Lloyd v Google is a landmark test of whether Lloyd, one individual, can bring such an action without active consent from interest parties such as the 4.4 million users. As with the internet, speed is of the essence — according to the BBC, a years-long case over a British Airways data breach is still asking for interested parties to opt-in. For claimants without time and money, bringing such a lawsuit is close to impossible.  

• Search engines scrambling

The wider significance of Lloyd v Google lies in its pursuance of a stricter data protection regime. Against the backdrop of the EU’s stricter data privacy laws, including the fundamental right to data protection contained in Article 8 of the Charter of Fundamental Rights of the European Union 2012/C 326/02, a more consumer-protective legal regime could be on the books. 

However, finding in Lloyd’s favour will have significant implications for internet-based businesses. The current claim itself would open the doors to civil litigation on behalf of millions of others, particularly pertinent in data breach cases. 

If the case does proceed beyond the procedural issue, imposing civil liability for wrongful breach of data privacy could be a significant drain on company funds. These sums might be a mere shallow dip in the pond for behemoth companies like Google and Tiktok, also facing claims in the EU and the UK by the former children’s commissioner Anne Longfield on behalf of millions of young adults and children. However, as the BBC reports, such liability could be a huge risk for smaller companies . 

Whether such liability acts as an effective deterrent to companies providing data-driven services remains to be seen. What is clear, however, is that consumers and companies alike are ‘Google-ing’ the answers to a question that demands the law keep up to scratch in this digital age. 

Find out more here or here.

Intellectual property: Covid Vaccine

Support Grows for WTO Intellectual Property Covid Vaccine Waiver

Reported by Jasmine Cracknell

French president Emmanuel Macron and Russian president Vladimir Putin are the latest leaders to join the US in showing their support for a waiver of IP rights for COVID-19 vaccines.

One hundred of the World Trade Organisation's (WTO’s) 164 states are said to be in favour, but the German Chancellor Angela Merkel remains against the idea, citing production capacities and quality standards as the main factors limiting vaccine supply, not patents.

The proposal to waive IP rights was first put to the WTO by representatives from South Africa and India in October 2020. The countries submitted a request to the WTO’s Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement for the waiver to remain in place until most of the world’s population had been vaccinated.

The TRIPS agreement came into effect in 1995 and applies to all WTO countries. It requires member countries to protect IP rights and to impose minimum levels of protection.

If agreed by the General Council, the waiver would provide that countries could suspend the enforcement of patents, copyrights, industrial designs and trade secrets without violating the TRIPS agreement. This would allow the compulsory licensing of such rights and prevent other countries bringing trade-related challenges against countries that opted to do this.

Compulsory licensing is where a government allows someone else to produce a patented product or process without the consent of the patent owner, or plans to use the patented invention itself.

Article 31 of TRIPS already allows compulsory licensing, but only for patents. The proposed waiver would go further in that it would also authorise compulsory licensing of copyrights, industrial designs and trade secrets for any use related to COVID-19.

Trade secrets are likely to be of particular importance when manufacturing vaccines, as they may cover items that have not yet been patented, or information on complex processes required to make the vaccine. Examples of trade secrets include the recipe for Coca-Cola and the formula for WD-40. The waiver would therefore provide an opportunity for countries to suspend trade secret protection for COVID-19 vaccines without violating the TRIPS agreement.

Although the waiver would allow countries to use IP rights more widely in the making of vaccines, many have questioned whether it will actually make a difference to vaccine supply. One of the reasons for such scepticism is that the waiver gives WTO countries the option to implement compulsory licensing; countries are not obliged to do so.

As this article by Jorge L. Contreras, Professor of Law at the University of Utah also points out, while countries may be happy to agree to the waiver, and therefore agree not to challenge other countries’ compulsory licensing regimes under TRIPS, they may be less willing to issue compulsory licensing orders of their own due to political reasons and pressure from pharmaceutical companies.

For the waiver to come into effect, the proposals must be agreed by the General Council of the WTO. A panel on intellectual property is expected to discuss the proposals next month.

Find out more here and here.

Case Law

Christian Porter’s suitability as a minister: independent commission of inquiry would examine whether rape allegation against him has merit

Reported by Emma Ducroix

The Greens want federal parliament to set up an independent commission of inquiry into Christian Porter’s fitness to be a minister and an allegation of sexual assault against him (Commissions of inquiry have the powers of a royal commission but are established by the legislature – not the executive government). The proposal for a commission of inquiry cannot be debated until ordinary Senate sittings resume on 15 June. A similar motion was supported by Labor in March but failed due to a tied vote in the Senate.

In February, the ABC reported a cabinet minister had been accused of sexually assaulting a 16-year-old in 1988 when he was 17. Porter subsequently denied the allegation. The ABC in its defence argues the story revealing the complaint was “substantially true” because Porter was “reasonably suspected” of the historic sexual assault. But the public broadcaster has not pleaded the defence of truth to imputations that Porter “brutally” and “anally” raped the young woman.
Greens senator Larissa Waters hopes to introduce a bill that would set up an inquiry into the matter given the allegation will not be directly tested in Porter’s defamation case against the ABC. The bill would need to pass both houses of parliament and the Coalition would likely defeat it in the lower house.
The commission would make “a determination on the balance of probabilities as to whether the allegations have any merit and make recommendations about whether Porter is a fit and proper person to hold any ministerial position”, the senator’s notice states. “Those recommendations will be tabled in parliament, subject to usual protections. Witnesses can also seek to have their evidence heard in camera and not published.”

Despite the fact that NSW police closed their investigation into the complaint, the complainant’s parents have backed “any inquiry” that would shed light on the circumstances surrounding her death in June 2020.

Meanwhile, a friend of the complainant says she raised concerns about one of Porter’s barristers weeks before she launched legal action to force her off the defamation case.
Jo Dyer, who was a debater with the complainant in the late 1980s, filed an application against Sue Chrysanthou SC asking the federal court to remove the expert defamation barrister from Porter’s case, claiming she had sought advice from Chrysanthou about a separate but related matter.
Porter is suing the public broadcaster, and journalist Louise Milligan, over an article alleging that an unnamed cabinet minister had been accused of a January 1988 rape in a dossier sent to Morrison and three other parliamentarians.

Porter was also the subject of a November Four Corners episode in which Dyer accused him of displaying “an assuredness that’s perhaps born of privilege”. Dyer did not make a specific allegation against Porter but the episode was criticised in an opinion piece in the Australian newspaper as “a poorly executed political hatchet job”.

Chrysanthou then reviewed a legal letter sent on Dyer’s behalf, claiming the piece had defamed her and revealing that Porter’s alleged victim had disclosed “an extremely serious allegation” to her.

At a preliminary hearing on Wednesday, justice Thomas Thawley made orders in Dyer’s matter, in which Dyer was ordered to make submissions by Thursday. Chrysanthou and Porter, as a party to the case, will have until Monday to file submissions and Wednesday to file evidence.

In a statement released through his solicitor, Rebekah Giles, on Wednesday evening, Porter said Dyer had sought “an order that Chrysanthou be restrained by the court from appearing as my barrister in my defamation proceedings”. “It has been widely known for two months that Sue has been acting as my counsel in this well publicised matter – yet the action has come shortly before court appearances on significant issues in the proceedings and over eight weeks after they were commenced,” the statement said. “I am therefore concerned about the timing of this application. Ms Chrysanthou is one of this country’s pre-eminent defamation advocates. “It is a critically important right for any citizen in legal proceedings to choose his or her own counsel.”

On Thursday, Dyer responded through her solicitors, Marque Lawyers, explaining that she had “expressed her objection to Ms Chrysanthou acting for Mr Porter, on the basis of an alleged conflict of interest” on “the same day” she became aware Chrysanthou acted for Porter on 15 March.

Dyer’s “solicitors have been in continuous correspondence with Ms Chrysanthou’s solicitors since that date, attempting in good faith to resolve this dispute without the need for court proceedings,” her statement said. “Those attempts having failed, Ms Dyer commenced proceedings against Ms Chrysanthou in the Federal Court on 10 May.” “Any suggestion that Ms Dyer has not acted in a timely manner or not in good faith is false. Ms Dyer will not be making any further public comment on the matter.”

You can find more here or here.