UK competition litigation against Meta will proceed to class certification hearing

Novel competition litigation filed in the UK against Facebook/Meta — seeking to extract billions in damages from the social media giant via an opt-out class action lawsuit route — will proceed to a certification hearing at the end of January, 2023, after Meta did not challenge the choice of forum to hear the claim.

The case was lodged back in January, with the Competition Appeal Tribunal — which is set to decide whether the claim should be certified as a collective action and proceed to a full trial.

Commenting in a statement, Kate Vernon from Quinn Emanuel Urquhart & Sullivan UK, LLP, the law firm acting for the litigant, said: “Earlier this year Facebook/Meta decided not to challenge the Tribunal’s jurisdiction over Meta Inc (Facebook’s US parent company) and Meta Ireland (Facebook’s Irish subsidiary), meaning that the case can now progress against all three proposed defendants in earnest. This was an important step for the claim – as it allows the claim to progress more quickly to the first substantive hearing. We are really pleased that the case is progressing and we have the certification hearing, scheduled for the end of January 2023.”

Class action style suits that have sought collective damages for privacy breaches have faced an uphill struggle in the UK — with a hammer blow being dealt to the category last November when Google prevailed in a Supreme Court appeal against long-running litigation related to a Safari privacy settings workaround after the court rejected the litigants’ push for compensation for a uniform loss of control, holding that loss/damage must be proved on an individual basis in order to claim compensation — so it will be interesting to see whether a competition damages complaint is allowed to proceed as a class action.

International competition law expert Dr Lovdahl Gormsen, who is bringing the claim and acting as the proposed class representative, argues in it that Facebook has imposed unfair terms, prices and/or other trading conditions on UK Facebook users — including by requiring users to hand over their personal data as a condition of access to the Facebook social network, and failing to share with users the profits it makes from such data. So loss of privacy also underpins the competition litigation.

At the Tribunal’s instruction, a legal notice about the claim has been published providing information for anyone in the proposed class (all people domiciled in the UK between February 11, 2016 to December 31, 2019 who used Facebook at least once), or any third party with a legitimate interest in the claim, to make oral and/or written submissions to the Tribunal.

The notice also provides information for anyone with an interest in the claim who wishes to object to Dr Lovdahl Gormsen acting as the class representative, or to object to the claim itself. 

Commenting in a statement, Dr Lovdahl Gormsen said: “I am delighted that we have been provided with the dates for the certification hearing. This will be heard at the Competition Appeal Tribunal in London between 30 January and 1 February 2023. It will decide whether the claim can go ahead as a collective action, and whether I should be authorised as the Proposed Class Representative.”

“Engagement with the Proposed Class, and others with an interest in the claim, is very important to me. Any Proposed Class Member, or any third party with a legitimate interest in the proposed claim (who is not a member of the Proposed Class), may apply to the Tribunal for permission to make oral and/or written submissions at the certification hearing. Any such application must be made in writing, supported by reasons, and be received by the Tribunal before 4pm on 10 October 2022,” she added.

“Similarly, if you want to object to the application for a Collective Proceedings Order and/or my authorisation as the Proposed Class Representative, you must write to the Tribunal stating your reasons for objecting by the same deadline.”

Further details about the litigation can be found at facebookclaim.co.uk.

Meta was contacted for comment.

An intertwining of competition law and privacy concerns is also causing a headache for Meta in Germany where the competition regulator has spent years pressing an “exploitative abuse” case against the tech giant, related to its combining of user data across different services — to create so called user ‘superprofiles’.

If it prevails, the pioneering procedure could see a structural separation of Meta’s business empire imposed by Germany without the need for it to order its business broken up. Legal questions pertaining to the German FCO’s case were referred to Europe’s top court last year — and a ruling is expected immanently. So that’s another case to watch.