Meta has failed in its attempt to stop a class action against it for allegedly abusing its dominant position by extracting commercially valuable data from users without offering payment
The claim, potentially worth more than £2bn, centres on Meta’s practice of collecting data from its users’ activities on platforms other than Facebook, as a take-it-or-leave-it condition for using Facebook. It alleges this was an unfair trading condition, and that Meta combined this off-Facebook and on-Facebook data to generate valuable targeted advertising revenue.
In February, the Competition Appeal Tribunal (CAT) certified the claim on an opt-out basis (after declining an earlier version of the claim), holding it was ‘clearly’ arguable. It refused Meta’s application to appeal. Meta then applied to appeal at the Court of Appeal.
Meta argued the CAT erred or at least arguably erred in its findings with regard to the methodology chosen by class representative Dr Liza Lovdahl Gormsen, a legal academic, to establish unfair pricing, and as to the logic of the way in which the causal link was pleaded.
Lords Justice Green and Lewis refused Meta permission to appeal, handing down their judgment this week, in Meta Platforms and others v Dr Liza Lovdahl Gormsen [2024] EWCA Civ 1322.
Giving the lead judgment, Green LJ said ‘the use of data as a proxy for monetary payment is a rapidly increasing phenomenon of modern digital life and as such it is generating a range of new legal issues’.
Green LJ said ‘there is nothing in the approach being mooted by [Lovdahl Gormsen] which is outwith normal methodologies.
‘But even if there is novelty in the issues arising it must be for the CAT to delve into such novelties to form a view, and it is not for this Court to seek to cut off such analysis before it has even been embarked upon’.
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