Meta Platforms Inc & Ors v Dr Liza Lovdahl Gormsen

At the certification and permission stages, an unfair-price claim in competition law may be arguable even where the alleged price is expressed through data rather than money. The assessment need not be confined to a single aggregate comparison of the whole service and whole price. A flexible before-and-after analysis may examine whether a later, incremental extraction of valuable data was justified by changes in the service and by the value exchanged. Incremental price increases are not presumptively unlawful.

A take-it-or-leave-it condition may supply an arguable causal link where the counterfactual is that users would have been able to negotiate compensation and the condition prevented that opportunity. A certification tribunal may require clarification and manage the case towards trial without requiring the claimant to answer every evolving defence. Refusal of permission at this stage decides arguability only, not the merits.

A proposed class representative brought opt-out collective proceedings alleging that Meta abused a dominant position by requiring Facebook users, on take-it-or-leave-it terms, to permit the collection and monetisation of off-Facebook data without compensation. The alleged abuse comprised an unfair trading condition and/or an unfair price.

The Competition Appeal Tribunal initially declined certification but stayed the matter and permitted an amended claim: [2023] CAT 10. It later approved the amendments and certified the revised claim on an aggregate damages basis: [2024] CAT 11. Meta sought permission to appeal, alleging errors concerning the unfair-price methodology and causation. The central questions were whether the claim was arguable and capable of case management to trial.

Disposition. The Court, sitting in a single judgment, dismissed Meta’s application for permission to appeal. The proposed grounds did not disclose an arguable error of law.

1. Permission threshold. The question was whether the CAT arguably erred in law when certifying the amended claim. The CAT’s assessment that a claim was clearly arguable and capable of being managed to trial attracted a relatively high hurdle on appeal. The Court should not resolve novel factual and evidential questions, or terminate the analysis before the CAT had undertaken it.
2. Unfair pricing. The two-limb test in United Brands v The Commission [1978] ECR 207 is flexible and open-textured. There is no single mandatory method of assessing abuse. A before-and-after comparison could therefore be relevant to an unfair-price claim. The pleaded case could examine whether the pre-2014 bargain was non-abusive and whether the later, incremental extraction of high-value data was unjustified by any corresponding change in the service or value transferred to users. That approach did not necessarily disregard the total value of the Facebook service. Incremental price increases are not presumptively unlawful, and a dominant undertaking may increase price without improving the quality or quantity of its offering.
3. Authorities and evidence. The flexible approach was consistent with Competition and Markets Authority v Flynn Pharma Ltd [2020] EWCA Civ 339. London and South Eastern Railway Ltd v Gutmann [2022] EWCA Civ 1077 confirmed that abuse may be assessed through a no-dominance counterfactual or by examining the disputed term itself for unreasonableness or disproportionality. The analogous German decision concerning Facebook data collection was, although non-binding, a powerful indicator that the issue was arguable.
4. Causation. The alleged take-it-or-leave-it condition arguably caused loss because, absent the abuse, users would have had a right to negotiate compensation for use of their data, whereas the condition prevented that opportunity. The CAT was entitled to treat the condition as part of the overall unfair-price and compensation claim. If the issue later became live on a standalone basis after failure of the unfair-price claim, the CAT could address its implications at that stage.
5. Case management and merits. The CAT was entitled to identify pleading and evidential deficiencies and use pragmatic case management without requiring the claimant to anticipate every defence. The Court expressed no concluded view on the merits; all substantive issues remained for trial.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1322, permission to appeal from the CAT’s certification decision was refused.
• Competition Appeal Tribunal: The CAT initially declined certification but stayed the proceedings and permitted an amended claim in [2023] CAT 10. In [2024] CAT 11, it approved the amendments and certified the revised opt-out collective proceedings on an aggregate damages basis. The CAT refused permission to appeal, and its later permission ruling was reported at [2024] CAT 30.