9 March 2022

TikTok privacy suit: Caroline Harbord is quoted in Law360

Dispute Resolution Senior Associate, Caroline Harbord, has been quoted in the Law360 article entitled 'TikTok privacy suit skirts Lloyd knockout for now'.

The article discusses the recent decisions made by Judge Matthew Nicklin regarding the case against TikTok for allegedly breaching privacy rights of children.

The article was first published on Law360 UK on 8 March 2022, and is available to read in full here, behind the paywall.

Caroline's full comments regarding this case can be found below.

A glimmer of hope for opt-out representative date protection group claims

The representative claimant in the opt-out data protection group claim against TikTok lives to fight another day, as the High Court (arguably unexpectedly) grants permission for the claim form to be served out of the jurisdiction on the foreign defendants.

The judgment is significant because it represents a departure, albeit a very cautious one, from the Supreme Court’s controversial decision in Lloyd v Google. In Lloyd v Google, the Supreme Court held that a similar (but not identical) opt-out representative group claim for breach of data protection legislation did not constitute a serious issue to be tried, such that the claim fell at the first hurdle.

While the judge in the TikTok claim was non-specific about the factors that empowered him to distinguish the TikTok claim from Lloyd v Google, it is clear that he gave weight to the fact that the claim against TikTok relates to breaches of GDPR, whereas in Lloyd v Google the claim related to the older and now defunct DPA 1998 which made no express provision for recourse arising from non-material damage.

The judge is also likely to have given weight to the claimant’s submission that there is a higher degree of uniformity between the TikTok class members and their associated damages, given that all class members actively signed up to TikTok. By contrast, the claimant class in Lloyd v Google all had their data surreptitiously stolen and commercialised by Google without their knowledge.

While the judgment undoubtedly provides a glimmer of hope for those who feared that all opt-out representative data protection group claims were dead in the water following Lloyd v Google, it is very clear that the representative claimant in the TikTok claim will have a tough battle ahead. As the judge acknowledged, the service out application (which was heard ex-parte such that the Defendants were not afforded the opportunity to state their position) was in many ways a pre-cursor to the forthcoming summary judgment application already issued by the English Defendant. All eyes will now no doubt be on this summary judgment hearing, where the High Court will give much more detailed scrutiny to the submissions highlighted above, including the extent to which it is bound by the Supreme Court’s decision in Lloyd v Google. This will no doubt have implications for all live and future opt-out representative data protection group claims, including their ability to obtain litigation funding.

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