Introduction

Meta Platforms, Inc (“Meta”), and its associated subsidiaries in the United Kingdom and Republic of Ireland, are the subject of a class action in the UK Competition Appeal Tribunal (“CAT”). The action has been brought by class representative Dr Liza Gormsen, on behalf of the approximate 45 million users of Facebook in the UK.

The hearing began on 30 January 2023 in the CAT, and it concluded on 1 February 2023. Judgment is currently pending.

The parties and allegations

Meta is the overarching parent entity, which owns and operates Facebook UK Ltd (“Facebook”), which runs and maintains the Facebook.com social media platform. The action brought in the CAT alleges that Facebook abuses its “dominant position” in the social media market, in breach of s 18 of the Competition Act 1998, as well as Article 102 of the Treaty on the Functioning of the European Union.

The allegations of Facebook’s abuse of its dominant position are based on three key grounds:

• The “Unfair Data Requirement”, where users of Facebook must agree to the terms of service imposed, allowing Facebook to collect, share, and process users’ personal data both on and off platform.
• The “Unfair Price”, which relates to the “charging” of an unfairly high “payment in kind”, being the exchange of “extensive” amounts of personal data, for use of Facebook’s services.
• Other unfair trading conditions, relating to the means by which Facebook imposes its terms of service on users, and subsequently how it collects, uses, and monetises users’ personal data in exchange for the use of Facebook.

The representative action is brought on behalf of approximately 45 million Facebook users on an opt-out basis.  The class of individuals is defined (in essence) as Facebook users who i) had and accessed their Facebook accounts between 11 February 2016 and 31 December 2019, and ii) were domiciled in the UK during this period.

The CAT has accepted that “given the prominence of Facebook in the EU and the UK, it is likely the alleged anti-competitive conduct had an appreciable effect on trade between Member States of the EU and within the UK”.

Loss and damage claimed

Ms Gormsen, as the class representative, has claimed for £2.2 billion in damages (excluding interest). The loss and damage is contended to be assessable by reference to the commercial value of users’ personal data, which has been monetised by Facebook, with a discount for the “minimal” value of access to the Facebook platform.

Next steps from here

This class action is the latest in a suite of ongoing legal action faced by the social media behemoth. In the current digital world, we are seeing that the collection, processing, and protection of people’s personal data is not only a focus for the data protection authorities across Europe, but is also front of mind for individuals who are increasingly more concerned about protecting their personal data.

This action in the CAT shows that controllers and processors should not only be mindful of their legal and regulatory requirements in the EU and UK, but also of the various other potential avenues individuals may have for redress. The acceptance of jurisdiction from the CAT may indicate a shift towards other legal and quasi-legal bodies beyond data protection authorities being willing to consider data protection issues in their jurisdictions.