Lifestyle Equities v. Amazon: UK Supreme Court Addresses Targeting and Passive Sales

Arnold LJ identified the following errors in the High Court's judgment: (i) Green J attached too much weight to the perception of the US website as a whole, rather than on an analysis of each of the acts of targeting complained of. (ii) Green J wrongly considered that because the US website was primarily directed at US consumers, it followed that the relevant web pages were not targeted at UK consumers. (iii)By framing the targeting issue as "taking deliberate aim" Green J had focused too heavily on Amazon's subjective intention, i.e. who Amazon intended to target, as opposed to whether objectively speaking UK consumers would consider the US website to target them. (iv) The judge wrongly accepted Amazon's argument that the UK-oriented aspects of the web pages were merely designed to make the US website more user-friendly for a (non-targeted) UK consumer. (v) The judge should have discounted the lower shipping costs on the UK website as relevant because consumers would not be likely to be aware of them. (vi) The judge wrongly treated Lifestyle's subjective motives in bringing the claims as relevant evidence to the question of targeting. Based on Amazon's criticisms of Arnold LJ's analysis, the Supreme Court considered it appropriate to reassess targeting and reached the following conclusions: (i) The Supreme Court agreed with Amazon that the type of self-contained review of specific webpages undertaken by the Court of Appeal was the wrong approach because it may not capture the targeting effect on a consumer of a website as whole. (ii) The Supreme Court rejected Amazon's criticism of the Court of Appeal for dismissing the evidence about delivery times and charges as pointing away from targeting UK consumers. (iii)Although the Supreme Court declined to find that working backward from the "Review your order page" as the Court of Appeal did would never be appropriate in other cases, they agreed with Amazon that in this case doing the review forwards (as the Supreme Court did in its own assessment) would more accurately reflect the consumer journey and how consumers would see and perceive the website. (iv) The Supreme Court acknowledged that although the Court of Appeal reached the correct conclusion on targeting, its approach was overly simplistic and set the threshold for targeting too low. According to the Supreme Court, it was a combination of the UK-tailored elements in the "Review your Order" page and all the other aspects of the US website which were des