Meta Platforms Inc & Ors v Gormsen

Factual and Procedural Background

This appeal arose from collective proceedings against Company A and affiliated companies, brought by Individual A as Class Representative on behalf of a class of more than 46 million users of the social networking platform. The pleaded claim concerned alleged abuse of dominance by imposing “take it or leave it” terms requiring users to provide off-platform data in exchange for access to the service, with the proceedings certified on an opt-out basis and listed for trial in October 2028. [Para 50][Para 52][Para 56][Para 62][Para 64][Para 70][Para 91]

Company A denied dominance, abuse, and any compensable loss, including by contending that no monetary payment would have been made in the counterfactual. Individual A then sought to amend the claim form to plead that, even if no individualized negotiation would have occurred, loss could be quantified by a hypothetical Nash bargaining analysis as user damages. The Competition Appeal Tribunal permitted the amendment, and Company A appealed that case-management decision. [Para 98][Para 102][Para 107][Para 110][Para 113][Para 116]

Legal Issues Presented

1. Whether user damages are, at least arguably, available as a remedy for abuse of dominance under section 18 of the Competition Act 1998 where the alleged abuse involves the extraction and monetisation of users’ off-platform data. [Para 28][Para 113][Para 128]
2. Whether the Competition Appeal Tribunal was entitled to allow the amendment at an early case-management stage, or whether the issue should have been determined as a pure point of law divorced from the facts. [Para 116][Para 128][Para 134][Para 135]
3. Whether the authorities on user damages, including Wass, Devenish, Gulati, One Step, and Lloyd v Google, foreclosed the proposed pleading. [Para 130][Para 156][Para 165][Para 189][Para 193][Para 229][Para 247]

Arguments of the Parties

Appellants' Arguments

• The appeal raised a pure point of law that the court should decide immediately. [Para 128]
• Devenish was said to bind the Tribunal and the Court of Appeal, because it treated Wass as confining user damages to a fixed list of proprietary torts, excluding competition claims. [Para 130][Para 182]
• User damages were said to be unavailable unless the underlying cause of action protected property rights, which section 18 CA 1998 allegedly did not. [Para 131]
• User damages were also said to require a total abrogation of the right, and not to apply where users had consented to data use, as the Class had done. [Para 132]

Respondent's Arguments

• Individual A argued that the pleaded counterfactual was a hypothetical negotiated bargain, measured by a Nash analysis, so the absence of real-world willingness to negotiate did not matter. [Para 109][Para 110][Para 111]
• It was said that user damages could compensate for the loss of control over off-platform data, because Company A had wrongfully interfered with a valuable right and should pay for the value taken. [Para 91][Para 93][Para 96]
• Individual A relied on later authorities, especially Gulati, One Step, and Lloyd v Google, to show that user damages are capable of evolution and can apply to commercially valuable data. [Para 123][Para 193][Para 229][Para 247]
• It was also argued that unlawfully obtained “consent” could not defeat the claim. [Para 254]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first emphasized that it should rarely interfere with a CAT case-management decision and that the CAT was entitled to defer the legal question until the facts were developed. The issue was not a clean abstract point of law, because the availability of user damages might depend on whether ordinary compensatory damages were available and adequate, and because competition cases are heavily dependent on expert evidence that evolves through disclosure and trial preparation. [Para 135][Para 142][Para 146][Para 148]

The Court then examined the authorities. It rejected the submission that Wass created a fixed and immutable list of cases for user damages, reading the case as showing a developing common-law principle rather than a closed category. It also rejected the proposition that Devenish definitively barred user damages in competition law, holding that the case concerned an account of profits and did not decide the present issue; if it were read as Meta suggested, that reading would be open to serious error. [Para 158][Para 162][Para 164][Para 165][Para 167][Para 171][Para 182][Para 187][Para 189]

Later authorities strengthened the Respondent’s position. Gulati showed that user-damages reasoning extends beyond proprietary torts to commercially valuable private information, and One Step explained that the real question is whether the defendant has taken something of value for nothing. Lloyd v Google was treated as confirming that user damages can sensibly apply to commercially valuable data and that the law should not be unduly rigid in that setting. [Para 193][Para 229][Para 240][Para 245][Para 247]

The Court further held that section 18 CA 1998 is broad enough to encompass misuse of property-like interests and consumer-facing abuses, and that it was at least arguable that unlawfully procured “consent” would not defeat a user-damages claim. On that basis, the Court concluded that the proposed amendment was properly allowed and that the issue should proceed to trial. [Para 252][Para 253][Para 254][Para 256][Para 259]

Holding and Implications

APPEAL DISMISSED. The Court upheld the CAT’s decision to allow the amendment pleading user damages, holding that it is at least arguable that such damages may be available in a competition-law claim involving the wrongful extraction and monetisation of users’ data. The practical effect is that the issue remains live for trial; the Court did not finally determine the merits of the user-damages claim. [Para 256][Para 259][Para 261]