Meta CPO hearing: the start of a new era for mass data privacy claims?

The Honourable Mr Justice Marcus Smith explained at the start of the hearing that, although the Tribunal is content to assume, for the purposes of certification, that Meta is dominant and that its conduct was abusive, the Tribunal would not certify a claim unless the applicant could make clear how the Tribunal could manage the cost and timing of the litigation to trial and how it will then try the claim.  Against this backdrop, the Tribunal appeared to be particularly focussed on assessing the robustness of the proposed methodology to calculate the class's loss, what the Tribunal should do if the PCR does not meet the test set out in Pro-Sys, and the role that the CMA could play in the litigation going forwards.

Meta levelled particular criticism at Dr Gormsen's proposed use of surveys to show the value that Facebook users ascribe to their individual data, on the basis that the assessment of the value of the data to the user would be acutely subjective in nature.  Smith J highlighted that, following the Court of Appeal's decision in BritNed, damages must be compensatory, and raised a concern as to how Dr Gormsen would show that the class had suffered loss, as opposed to Meta simply profiting from its dominant position. The Tribunal went as far as to say that the proposed claim might be one where the loss suffered by each Facebook subscriber is so subjective that there cannot be a class loss at all.

However, the Tribunal's decision is unlikely to be handed down for a number of months. We will then know whether, following the Supreme Court's unanimous decision in Lloyd v Google, which appeared to close the door to data privacy actions on a mass basis, the Tribunal has opened a window, creating an avenue for such claims to be pursued as breaches of competition law.