Key Facts
- •Meta Platforms Inc, Meta Platforms Ireland Limited, and Facebook UK Limited (Meta) appealed a Competition Appeal Tribunal (CAT) decision certifying a collective claim against them.
- •The claim, brought by Dr Liza Lovdahl Gormsen (CR), alleges Meta abused its dominant position by extracting data from Facebook users without payment.
- •The CAT certified the amended claim based on an opt-out, aggregate damages basis, finding it 'clearly' arguable and manageable.
- •Meta's appeal focused on the methodology for establishing an abuse of unfair pricing and the logic of causation.
- •The CR's claim covers all UK Facebook users accessing the service between February 14, 2016, and October 6, 2023.
- •The alleged abuse involves Meta's collection of off-Facebook data via 'take-it-or-leave-it' (TIOLI) terms, which the CR argues is an unfair trading condition and/or unfair pricing.
Legal Principles
Unfair pricing in competition law, as established in *United Brands* and subsequent cases, requires considering the reasonableness of the relationship between the entire economic value of the service and the entire price paid.
*United Brands v The Commission* [1978] ECR 207; *Competition and Markets Authority v Flynn Pharma Ltd* [2020] EWCA Civ 339; *London and South Eastern Railway Ltd v Gutmann* [2022] EWCA Civ 1077
Abuse of dominance can be assessed by reference to a counterfactual scenario without dominance, or by evaluating the disputed term's reasonableness.
*London and South Eastern Railway Ltd v Gutmann* [2022] EWCA Civ 1077
In collective proceedings, the claimant must establish a causal nexus between the alleged abuse and the loss suffered.
Case law on collective proceedings
Negotiating damages, as articulated in *Morris-Garner v One Step (Support) Ltd* [2018] UKSC 20, can be a basis for a claim, but causation must still be demonstrated.
*Morris-Garner v One Step (Support) Ltd* [2018] UKSC 20
Outcomes
The Court of Appeal refused Meta's application for permission to appeal.
The CAT did not err in law by certifying the claim. The CR's methodology, while novel, was arguably within established legal principles. The CAT appropriately considered the evidence presented and could manage the case to trial.