A Competition Appeal Tribunal (CAT) ruling has reopened debate on the availability of ‘user damages’ in competition claims. Writing in NLJ this week, Edward Nyman of Hausfeld explains how the CAT allowed Dr Liza Lovdahl Gormsen’s alternative damages case against Meta to proceed, rejecting arguments that such damages are barred in competition law
User damages focus on the value of control over an asset—here, personal data—rather than traditional loss. The CAT held that the issue is ‘fact-sensitive’ and unsuitable for strike-out, particularly where conventional damages may be unavailable. Importantly for collective actions, the tribunal accepted that user damages can be assessed on an aggregate basis.
While the law remains ‘a developing area’, the decision signals that claimants may plead loss of control where defendants argue they would never have paid for the relevant use. For now, the nettle has been left firmly ungrasped.
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