The three claimants accessed various Google services through their Apple Safari browsers. The Safari browser’s default setting was to block certain “cookies”, small files stored on a user’s hard drive which enable the tracking and collation of browser activity. The claimants alleged that Google developed a “workaround”, which enabled it to place such cookies on their devices notwithstanding their privacy settings; Google then used the “workaround” to target advertising, which appeared on their screens. The claimants alleged that they suffered acute distress as a result of knowing that sensitive personal information might therefore be revealed to those who happened to see the advertising on their screens (albeit that none of the claimants alleged that this had happened). They therefore sued for general and aggravated damages, an account of profits and an injunction in breach of privacy, misuse of private information, and breach of statutory duty, namely Google’s duties as data controller under s.4(4) of the Data Protection Act 1998 (“DPA 1998”).

The traditional approach to service out requires the claimant to show that each cause of action on which she relies falls within the letter and spirit of one of the grounds.3 This is because service out of the jurisdiction has traditionally been seen as an interference with the sovereignty of the defendant’s state of residence, and a serious imposition on the defendant, so that comity and practical concerns require that power to be exercised sparingly. Doubt was cast on that orthodox approach and rationale by Lord Sumption in Abela v Baadarani,4 who stated, in an obiter dictum with which all their Lordships agreed, that it “should no longer be necessary to resort to the kind of muscular presumptions against service out which are implicit in adjectives like ‘exorbitant’”.5 The merits of that approach have been discussed in other Comments.6