The High Court recently heard an application as to whether the Claimant in the data protection breach and misuse of private information case brought against TikTok was permitted to serve her claim out of the jurisdiction.
The action is pursued by the Children’s Commissioner as a representative action alleging that millions of children’s private information are being misused. The representative action is trying to be brought on behalf of all of the children in the UK and the European Economic area that had an account on TikTok. The claim alleges that TikTok could be liable to as many as 3.5 million children for a total sum of between £1.7 billion and £5.1 billion.
Lloyd V Google
The judgment in the case of Lloyd v Google has clear implications for the claim pursued against TikTok. Our previous blog on this case can be read here (in respect of the first instance decision – which held that the use of private information has a value and accordingly all of the Claimants will have suffered damage as a result of misuse of their data). That decision was however reversed on appeal. In finding in favour of Google in the appeal, Lord Leggatt said:
“158. The judge took the view that, even if the legal foundation for the claim made in this action were sound, he should exercise the discretion conferred by CPR rule 19.6(2) by refusing to allow the claim to be continued as a representative action. He characterised the claim as “officious litigation, embarked upon on behalf of individuals who have not authorised it” and in which the main beneficiaries of any award of damages would be the funders and the lawyers. He thought that the representative claimant “should not be permitted to consume substantial resources in the pursuit of litigation on behalf of others who have little to gain from it, and have not authorised the pursuit of the claim, nor indicated any concern about the matters to be litigated”: [2019] 1 WLR 1265, paras 102-104. The Court of Appeal formed a very different view of the merits of the representative claim. They regarded the fact that the members of the represented class had not authorised the claim as an irrelevant factor, which the judge had wrongly taken into account, and considered that it was open to them to exercise the discretion afresh. They saw this litigation as the only way of obtaining a civil compensatory remedy for what, if proved, was a “wholesale and deliberate misuse of personal data without consent, undertaken with a view to commercial profit”: see [2020] QB 747, para 86. In these circumstances, the Court of Appeal took the view that, as a matter of discretion, the claim should be allowed to proceed.
- It is unnecessary to decide whether the Court of Appeal was entitled to interfere with the judge’s discretionary ruling or whether it would be desirable for a commercially funded class action to be available on the facts alleged in this case. This is because, regardless of what view of it is taken, the claim has no real prospect of success. That in turn is because, in the way the claim has been framed in order to try to bring it as a representative action, the claimant seeks damages under section 13 of the DPA 1998 for each individual member of the represented class without attempting to show that any wrongful use was made by Google of personal data relating to that individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google. For the reasons explained in this judgment, without proof of these matters, a claim for damages cannot succeed.”
The above passage from the judgment in the Google case sets out in concise terms why TikTok now says that the claim against it must also fail. Based on the Google judgment, TikTok has applied for summary judgment in the claim against them and if that application is successful, it will bring to an end the claim brought against them.
Charles Ciumei QC on behalf of the Claimant in the TikTok action stated to Mr Justice Nicklin that the Google judgment did not expressly engage with GDPR and misuse of private information was not ahead of the claim brought in that case. Mr Justice Nicklin has reserved judgment on the application and so we will need to see what the outcome is.
How can we help
Kevin Modiri is a Partner in our expert Dispute Resolution team.
Should you have any issues surrounding the use of personal data, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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