Tick, tock: is time up on UK privacy class actions?

Reports of the death of privacy class actions in the UK, if not greatly exaggerated, have abounded following the Supreme Court’s recent(ish) dismissal of similar claims.

It’s a fair assumption to make, given the high bar for claimant lawyers to demonstrate that material damage has been suffered by all class members and the reticence of funders to bankroll mass opt-out privacy claims whose outcome is far from certain. So are these claims really dead? Or can the Supreme Court’s findings be distinguished in way that allows some class actions to emerge, Lazarus-like, and find success before the English courts?

With that in mind, this week I’ve been mostly watching the ongoing representative action against TikTok being brought by the former children’s commissioner for England, Anne Longfield. Yesterday, the English High Court granted permission for the claimants to serve TikTok’s foreign affiliates, on account of there being a “serious issue to be tried” in respect of Longfield’s claim that the platform’s data collection practices breach European privacy laws.

“The issue is primarily (if not exclusively) an issue of law and the proper interpretation of the GDPR and whether the Supreme Court’s conclusion in Lloyd v Google can properly be distinguished,” the Court wrote. “I can readily see the arguments that could be advanced by the Defendants, but they have not yet been developed. The test is whether the argument advanced by the Claimant in relation to Lloyd v Google has a real prospect of success. Having heard only the Claimant’s argument properly argued, I consider that she has satisfied me at this stage.”

Before we all get carried away, it’s perfectly possible that the case could be dismissed on summary judgment at a hearing later this year, on the basis that it can’t be distinguished from the Supreme Court’s decision. And if that’s the case it seems unlikely that claimant lawyers and funds would have the appetite to continue bringing mass claims in their current form.

But for the time being at least, it’s premature to read the last rites on representative privacy actions in the UK.