The Competition Appeal Tribunal (CAT) will hear this week why it should or should not certify Dr Liza Lovdahl Gormsen’s abuse of dominance claim against Meta (formerly Facebook Inc). If it decides to make a Collective Proceedings Order (CPO), this could be a pivotal moment for collective redress in this jurisdiction. It could potentially open the CAT regime to data privacy, consumer and environmental cases that may be capable of being formulated as competition cases. Emily Cox and Ronan D’Cruz consider the context surrounding this case and its potential implications.
The collective redress landscape in England and Wales looked a little less verdant following the Supreme Court’s decision in Lloyd v Google a year ago, particularly for opt-out data privacy group actions. But shoots of hope now spring in various corners.
The fall-out from Lloyd v Google
In November 2021, the Supreme Court closed the door on Richard Lloyd’s CPR 19.6 representative claim against Google as it did not disclose a basis for awarding damages for “loss of control” of consumers’ data under section 13 of the Data Protection Act 1998 without individualised evidence of damage or distress. The court did offer glimmers of light in the form of:
- an open question about “loss of control” damages under the Data Protection Act 2018,
- the suggestion of a different outcome for a claim framed as a misuse of private information, and
- a proposal for a bifurcated approach, with common issues of law or fact being decided on a representative basis but individual determinations being dealt with later.
The former Children’s Commissioner for England, Anne Longfield, was poised to answer the first open question with a claim under the Data Protection Act 2018 and Article 82(1) of the General Data Protection Regulation (GDPR). Indeed, in March 2022, Mr Justice Nicklin determined that Longfield’s representative claim against TikTok for unlawful processing of children’s personal data disclosed a “serious issue” to be tried and allowed the claim form to be served out of the jurisdiction. However, the judge also made critical comments about the handling of the claim, which was regrettably discontinued for funding reasons soon after and before a strike out and/or summary judgment hearing.
At around the same time, representative claimant Andrew Prismall discontinued his claim against Google and DeepMind under the Data Protection Act 1998 in relation to a data-sharing deal with the NHS Royal Free. However, in April 2022, Prismall reissued his CPR 19.6 claim as a misuse of private (medical) information claim, so paying heed to the Supreme Court’s comments. We understand the hearing of an application for strike out of the claim and/or for summary judgment is due to take place this quarter. A positive outcome at that hearing could unlock funding for a category of data privacy class actions.
As to the Supreme Court’s suggestion of bifurcated claims, while instinctively unattractive from a funding perspective, this has also seen the start of take-up. In November 2022, Tanya O’Carroll brought an individual claim against Meta, not for damages but for a declaration that Meta is acting in contravention of the UK GDPR right to object to being profiled for targeted advertising purposes and a compliance order. Orders to this effect would have precedent value for millions of Meta users in England and Wales. Defendant law firms say that they have seen more of these declaratory relief-only cases at the pre-action stage.
The Lovdahl Gormsen case
Promising though these shoots are, the fact remains that post-Lloyd v Google, England and Wales only has a functioning ‘class action’ regime (in the sense of an opt-out representative action rather than a group litigation order) for competition law claims by virtue of the Consumer Rights Act 2015. Which brings us on to the case of Dr Liza Lovdahl Gormsen v Meta.
Acting as class representative, Dr Lovdahl Gormsen’s application for a CPO will be heard from 30 January 2023 over an estimated three days. Lovdahl Gormsen’s claim on behalf of 45 million Facebook users is that Meta abused its dominant position including with unfair and excessively complex terms and conditions with respect to how personal data is utilised, which consumers could not avoid signing up to, such that consent cannot be meaningful.
If Dr Lovdahl Gormsen’s case is certified, it could potentially open the CAT regime to similar data privacy and consumer law cases that may be capable of being formulated as competition cases. Maybe that is not surprising, given data privacy, consumer and competition laws are heavily interlinked in the digital age and all go to consumer harm.
The competition regime enshrined in the Consumer Rights Act 2015 was, after all, meant to be the start of the collective redress story and not the end. The intention was always to expand the regime sectorally or on a generic basis. However, the government declined to take the next step for data privacy claims and introduce Article 80(2) GDPR following its February 2021 consultation, nor did it agree to expand the scope of class actions following the competition and consumer policy consultation in April of last year.
Now that the competition regime has been unlocked by Merricks v MasterCard, and the EU presses on with the transposition of the Representative Actions Directive, the time has come to get opt-out collective redress in England and Wales running on all fronts.
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