In Gormsen v Meta, the Class Representative contends that Meta abused its dominant position by making access to Facebook conditional upon users giving up access to certain personal data concerning their off-Facebook activities. As for causation and loss, the case currently pleaded is that users would, in a counterfactual absent abuse, have received a transfer of value from Meta in return for the collection of their Off-Facebook Data. Following a contested hearing, this claim was certified in February 2024 and Meta’s application for permission to appeal was refused by the Court of Appeal.
One of Meta’s defences to the claim is that it would not in fact have made a payment in a counterfactual absent abuse. The CR applied for permission to amend her claim form to seek the remedy of “user damages”, i.e. the remedy described as “negotiating damages” by the Supreme Court in One Step (Support) Ltd v Morris-Garner [2019] AC 649.
Meta resisted the amendment application on the ground that user damages can never be awarded for a breach of competition law. Its case was that there is binding authority to this effect, namely Stoke-on-Trent v W&J Wass Ltd [1988] 1 WLR 1406 and Devenish Nutrition v Aventis [2009] Ch 390. It also argued that the certification requirements are not satisfied.
Following a hearing on 29 September 2025, the CAT rejected Meta’s arguments and allowed the amendment application. It held, in summary, that: (i) neither Wass nor Devenish decides that user damages cannot be awarded for a breach of competition law; (ii) the categories of case identified in One Step in which user damages can be awarded in tort are (contrary to Meta’s contention) not exhaustive, as demonstrated by the availability of user damages for the tort of misuse of private information: [15]-[16]; and (iii) whether user damages are available in this case is ‘far from straightforward’ but there are ‘parallels which can be drawn’ with other torts and the CR’s case ‘has reasonable prospects of succeeding at trial’: [44].
As for certification, the Tribunal rejected Meta’s contention that user damages require individualised assessment even in a class action, pointing out that this is inconsistent both with section 47C(2) of the Competition Act 1998 and with the observations of the Court of Appeal in Merricks v Mastercard [2019] EWCA Civ 674: see [51]-[53].
Niranjan Venkatesan KC, Sarah O’Keeffe (Brick Court) and Ian Simester (Fountain Court) acted for the successful Class Representative, instructed by Quinn Emanuel Urquhart & Sullivan LLP.
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