S (A Child) v TikTok Inc. & Ors

In deciding whether a child claimant should sue anonymously, the court must balance open justice against the claimant’s privacy, welfare and access to justice. Childhood alone does not justify anonymity. The court must examine the likely attention, foreseeable harm, the public value of identifying the claimant and whether a lesser measure would suffice. The best interests of the child receive primacy, but the assessment remains fact-sensitive. Anonymity may be necessary where identification creates a significant risk of bullying or other harm, while adding little to public understanding of the litigation. The court should also consider whether refusal would deter children from bringing claims to vindicate data-protection rights.

A 12-year-old intended claimant, represented by the Children’s Commissioner for England as litigation friend, sought permission to issue a proposed representative claim anonymously against six companies associated with TikTok and Musical.ly. The intended claim alleged misuse of private information and breaches of the GDPR and UK GDPR, with remedies including damages for loss of control of personal data.

The application was made before proceedings were issued and shortly before the end of the Brexit transition period. The court considered the evidence of likely online attention, bullying and hostile reactions, the claimant’s welfare, the public interest in identification, and whether anonymity was necessary to secure the proper administration of justice.

1. Application granted. The claimant was permitted to issue the intended proceedings under a pseudonym. The application to seal the court file was no longer pursued, and the judgment was given publicly.
2. Open justice is the general rule. Under the Convention rights and CPR 39.2, derogation requires both a specified justification and necessity for the proper administration of justice. The fact that the claimant is a child, or that the proceedings are likely to attract attention, is insufficient without more.
3. The court must assess the nature of the anticipated attention and the harm it may cause. The evidence established a realistic risk of direct online bullying and hostile reactions from social-media influencers. A 12-year-old would generally have less emotional resilience than an adult, and such attention could materially harm mental health and emotional and educational development.
4. The best interests of the child receive primacy, but the court must balance them against open justice by reference to the circumstances of the individual case. Relevant considerations included the purpose of open justice, the value of identifying the claimant to public understanding and scrutiny, and the risk of harm to the claimant and the administration of justice.
5. Identification added little to the public understanding of the proposed litigation. The central issues concerned the alleged conduct of TikTok and the defendant companies, while the claimant’s material characteristics were age and use of the platform. The proposed damages claim was for a standard tariff for abstract loss of control of personal data.
6. A lesser measure, such as withdrawal from social media, would not adequately address the risk. Anonymity also supported access to justice because requiring identification might deter children from bringing data-protection claims. The order therefore satisfied the requirement of necessity. The public could be told that the claimant was a 12-year-old girl from London, as that disclosure created no material risk of the identified harms.