High Court grants girl anonymity in TikTok representative action

TikTok: Representative action

A High Court judge has granted anonymity to a 12-year-old girl, allowing the Children’s Commissioner, as her litigation friend, to bring a breach of privacy action against social media platform TikTok.

But Mr Justice Warby said he had questioned the timing of the application, which was filed electronically on the Sunday afternoon before the final day of last month’s legal term, with the result that it had to be heard remotely during the vacation on 30 December.

On the substantive issue, the judge said he agreed with Children’s Commissioner Anne Longfield that, if the girl were named, there was a risk of online bullying by other children and “negative or hostile reactions from social media influencers”.

Ms Longfield alleges that TikTok misused the girl’s private information and processed her personal data in breach of the duties imposed by the GDPR.

The remedies sought are a declaration, damages for loss of control of personal data, injunctions and orders for erasure of the data in question.

Warby J said Ms Longfield’s intention was to bring a representative action under CPR 19.6 claiming the remedies on behalf of the claimant and “all other children under 16 years of age who are or were users of TikTok” and its predecessor Musical.ly.

“This is not a case in which the identity or other singular attributes of the claimant are central, or even important aspects of the claim, that therefore need to be known and understood by the public.

“The main characteristics of importance appear to be age and use of TikTok, and those are shared with all the represented parties.”

Warby J said he attached weight to the argument put forward by the claimant’s lawyers that naming the girl could have a “chilling effect on the bringing of claims by children to vindicate their data protection rights”.

The claimant accepted that the public could be told that the girl was aged 12 and from London, but otherwise the court’s grant of anonymity “supports the legitimate and important aim of affording access to justice”.

The judge explained that those representing the claimant were keen to issue before the end of 2020 because of changes to the law as a result of the end of the Brexit transition period.

With all but one of the defendants outside England and Wales, issuing before 1 January 2021 meant any judgment given would be enforceable in member states without further procedures.

“If the proceedings are issued from 1 January 2021 onwards, local laws of each member state will apply which could severely impact and/or prejudice to claimant’s ability to enforce.”

Warby J said this did not explain why the application was made so late in the year, and recounted that it was attributed to the need to arrange third-party funding.

“It is inevitably inconvenient to confront the court with an application filed on the last day of term, demanding an immediate hearing. During the pandemic, the court’s resources have become unusually stretched. The normal case load has been managed, with few exceptions.

“But this was far from a routine application. The claim was novel if not unique. It was to be brought against a multiplicity of parties, all but one of them foreign to England and Wales.

“If it might be prejudicial to the claimant and those whom it was intended to represent for the proceedings to be issued in 2021, undue haste to get them issued in 2020 might be correspondingly prejudicial to the defendants, or some of them.”

Warby J said that, besides “the dearth of evidence” about the reasons for lateness, there were a number of aspects of the claimant’s paperwork that raised questions, but “very little time available to review the evidence and argument fully, consider all the implications, and conduct a satisfactory hearing”.

He said he had to order a hearing to assess whether the urgency and last-minute nature of the application were due to unreasonable delay on the part of those representing the claimant.

Further evidence was provided about the work on securing funding, as a result of which Warby J said “I do not consider that there has been undue delay such as should deter me from resolving the application forthwith”.

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