Law360, London (January 4, 2021, 3:43 PM GMT) — A judge has ruled that a 12-year-old girl can remain anonymous in her pursuit of claims that the video-sharing app TikTok is illegally exploiting the personal data of children.
Judge Mark Warby said in a Dec. 30 ruling at the High Court that he would permit the case to go forward, with the claimant being identified only as a girl of 12 from London.
“Disclosure of that information is a lesser measure than total elimination of all personal information other than her age, and one that does not create a material risk of the harms identified,” the judge wrote.
The litigation, backed by Anne Longfield, the Children’s Commissioner for England, targets TikTok Inc. and five related companies, including its “effective predecessor” Musical.ly.
Acting as a “litigation friend” on behalf of the girl, Longfield told the court that the lawsuit seeks to bring a representative action on behalf of all children under 16 years of age who are or were TikTok users.
The suit claims that TikTok has misused the 12-year-old girl’s private information for advertising purposes, in violation of duties imposed by the European Union’s General Data Protection Regulation rules and the U.K.’s corresponding legislation.
In addition to unspecified damages for “loss of control of personal data,” the suit seeks to have the girl’s personal information erased from the TikTok platform.
Judge Warby noted in his ruling that the lawsuit against TikTok is “clearly inspired” by a collective lawsuit in the U.K. accusing Google LLC of tracking the personal data of iPhone users.
That case is due to come before Britain’s Supreme Court, which agreed to hear Google’s challenge to an appellate court finding that the iPhone users had sufficient common ground to be considered a representative group.
“Having read the papers, it was clear that those representing the claimant do not wish to press on with the case until the outcome of the appeal in Lloyd v. Google is known,” Judge Warby said. “But they were keen to issue the claim before the year end.”
The urgency stems from the fact that the end of the Brexit transition, at the close of 2020, brought about changes in law — specifically GDPR — which the girl’s lawyers said would affect her claim.
According to the girl’s counsel, the court will maintain jurisdiction over the GDPR claims as the case was filed before the end of the year.
That jurisdiction would be “less clear” if the claim had been filed in 2021, the girl’s counsel said in court filings, and could “prejudice the ability of the claimant to bring the claim and/or defend any jurisdictional challenge” brought by the defendants.
Her lawyers also told the court that they needed to file before the end of 2020 because that would make it easy to enforce any judgment given in EU member states without further procedures.
In his ruling, Judge Warby said he expected that the case would attract significant attention, some of which would be focused on the girl if her identity was known.
What was persuasive, he said, was the evidence of Longfield and her office that there was a real risk of direct online bullying by other children or users of the TikTok app, as well as “negative or hostile reactions from social media influencers who might feel their status or earnings were under threat.”
The judge also gave significant weight to her argument that if the court required her to be named, it could have a “chilling effect” on claims brought on behalf of children to vindicate their data protection rights.
Other companies named as co-defendants in the litigation include Tiktok Information Technologies Ltd., Tiktok Technology Ltd., Bytedance Ltd., Beijing Bytedance Technology Company Ltd. and Musical.Ly.
The defendants were not present or represented in court Wednesday.
In its terms of service, TikTok states that it is a platform only for people 13 and older. Prospective users entering a birth date indicating they are younger than that age are not allowed to register and are blocked from trying again.
“Privacy and safety are top priorities for TikTok and we have robust policies, processes and technologies in place to protect all users, and our younger users in particular,” a TikTok spokesperson told Law360.
Representatives for the girl and Longfield did not respond to requests for comment.
The claimant is represented by Charles Ciumei QC and Helen Morton of Essex Court Chambers, instructed by Scott + Scott UK LLP.
Counsel information for TikTok and the other defendants was not available Monday.
The case is SMO v. TikTok Inc. and others, case number QB-2020-004576, in the High Court of Justice of England and Wales, Queen’s Bench Division, Media and Communications List.
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Author: Bonnie Eslinger