ICO fines TikTok for misusing children’s data

The Information Commissioner’s Office (“ICO”) has imposed a £12.7 million fine on TikTok for a number of breaches of data protection law, including failing to use children’s personal data lawfully.

The ICO estimates that TikTok allowed up to 1.4 million UK children under 13 to use its platform in 2020, despite TikTok’s own rules not allowing children of that age to create an account. The ICO found that TikTok had failed to obtain the requisite parental consent under Article 8 UK GDPR. It also fined TikTok for breaches of Articles 12 and 13 GDPR, for failing to provide appropriate information to people using the platform about how their data is collected, used, and shared in a way that is easy to understand. Without that information, users of the platform, in particular children, were unlikely to be able to make informed choices about whether and how to engage with it. The ICO further found that TikTok had breached Article 5 UK GDPR, by failing to ensure that the personal data belonging to its UK users was processed lawfully, fairly and in a transparent manner.

The ICO’s announcement is available here.

The decision has been widely reported on, including by CNN, NBC, the Financial Times, the BBC, CNBC, the Guardian, the Telegraph and the Daily Mail.

Nikolaus Grubeck and Jenn Lawrence have been advising the ICO.

Gerry Facenna KC, Nikolaus Grubeck and Alison Berridge instructed in multi-billion-pound ad tech lawsuit against Google

Gerry Facenna KC, Nikolaus Grubeck, and Alison Berridge, instructed by Hausfeld LLP, are representing technology journalist and campaigner Charles Arthur in proposed collective proceedings against Google.

Mr. Arthur has filed a claim in the Competition Appeal Tribunal, seeking an estimated £3.4bn in damages on behalf of over 200,000 publishers of websites and apps who were deprived of ad revenue as a result of abuses of dominance by Google.

Display ads are a form of advertising that are shown when a user visits a website or app. Google holds a dominant position in a number of markets for services which intermediate between publishers offering online display advertising and advertisers. Mr Arthur alleges that Google foreclosed those markets, excluding rivals and raising the costs to publishers.

Mr Arthur has secured third-party litigation funding, meaning affected UK publishers will not pay costs to participate in this legal action or have any financial risk in relation to Google’s costs.

The case has been covered in the media, including The BBC and The Global Competition Review. The claim website can be found here.

Revised DPA Immigration Exemption legislation again held to be unlawful

In R (the3million and Open Rights Group) v SSHD and SSDCMS [2023] EWHC 713 (Admin) the High Court found unlawful the UK Government’s second attempt to enact statutory restrictions on data protection rights in the context of immigration control.

The Court of Appeal previously held in R (Open Rights Group & The3Million) v SSHD & SSDCMS [2021] EWCA Civ 800 that an earlier version of the Immigration Exemption under the Data Protection Act 2018 was incompatible with retained EU law. The Government subsequently enacted the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022 (SI 2022/76), amending the DPA 2018 in light of the Court of Appeal’s decision. The Claimants made a further challenge to the revised version of the Immigration Exemption, arguing that Government’s second attempt failed to remedy the defects identified in the first claim and remained in breach of Article 23 of the UK GDPR.

Saini J agreed, allowing the Claimants’ challenge and holding that “the overriding matter which needs to be addressed by the Defendants is the use of a policy to set out the safeguards and tests to be applied in using the Immigration Exemption. … the measures to satisfy the relevant provisions of Article 23(2) need to be set out in either legislation, or a code endorsed by Parliament, with binding legal effect in domestic law.” He therefore made a declaration that the Immigration Exemption is unlawful but suspended that order for a period of three months, to allow the Defendants an opportunity to put in place compliant legislation.

The judgment is available here.

Nikolaus Grubeck and Julianne Kerr Morrison acted for the successful Claimants, instructed by Leigh Day.

CAT certifies Boundary Fares opt-out collective proceedings against the operator of the Thameslink, Southern and Great Northern rail franchises

On 24 March 2023, the Competition Appeal Tribunal certified an application for opt-out collective proceedings against Govia Thameslink Railway Limited, the operator of the Thameslink, Southern and Great Northern rail franchises, together with its parent companies, for alleged abuses of their dominant position in relation to the sale of “Boundary Fares”, a type of extension ticket for use in conjunction with a TfL Travelcard. The Tribunal’s judgment is available here.

The class representative, Mr Justin Gutmann, alleges that the Defendants abused their dominant position by failing to make Boundary Fares sufficiently available, or to use their best endeavours to ensure a general awareness among their customers of Boundary Fares, and alleges that this has resulted in many Travelcard holders paying twice for part of their rail journeys. The Defendants deny the claim in full.

The application for a collective proceedings order was unopposed by the Defendants in light of the fact that the Tribunal has already authorised Mr Gutmann to act as the class representative in materially identical collective proceedings against the operators of the South Eastern and South Western rail franchises: see here. An appeal against that judgment was dismissed by the Court of Appeal in July 2022: see here.

At a hearing on 22 March 2023, the Tribunal also considered an application by the Secretary of State for Transport to intervene in the three sets of collective proceedings. The Tribunal granted the Secretary of State permission to file written submissions on the regulatory framework of fare setting and arrangements made thereunder, but otherwise refused his application.

The Tribunal also determined that the three sets of collective proceedings shall be case managed and tried together. A further CMC will be held in the summer term to consider directions to trial.

Philip Moser KCStefan Kuppen and Alexandra Littlewood (instructed by Hausfeld & Co LLP and Charles Lyndon Ltd) represent Mr Gutmann.

Tim Ward KC and James Bourke (instructed by Slaughter and May) represent First MTR South Western Trains Limited.

Paul Harris KCAnneliese Blackwood, Michael Armitage and Clíodhna Kelleher (instructed by Freshfields Bruckhaus Deringer LLP) represent Govia Thameslink Railway Limited, Govia Limited, The Go-Ahead Group Limited, Keolis (UK) Limited and London & South Eastern Railway Limited.

Anneli Howard KC, Brendan McGurk and Khatija Hafesji (instructed by Linklaters LLP and Eversheds Sutherland) represent the Secretary of State for Transport.

CAT orders cost capping in first subsidy control case

In the first appeal brought under section 70 of Subsidy Control Act 2022 (the “2022 Act”), the President of the Competition Appeal Tribunal has ordered that any costs award in favour of Appellant be capped at £60,000 and any costs award in favour of the Respondent be capped at £50,000: The Durham Company Limited v Durham County Council [2023] CAT 14.

The President indicated that subsidy control cases should be seen through the lens of the Tribunal’s “fast track” procedure, regardless of whether any formal order is made under rule 58.

The Appellant supported a cost capping order (having initially sought an order for cost budgeting). The Respondent local authority accepted that the Tribunal had jurisdiction to make a cost capping order, but had argued that the Tribunal ought to approach its discretion in accordance with the Corner House principles applicable in High Court judicial review cases. Those principles would not be satisfied in this case because the Appellant has a private interest in the outcome of the proceedings.

The President held that the Tribunal’s jurisdiction to impose cost capping in such cases arises under its general cost management power in rule 19(2)(r), not the cost capping provisions of rule 58. He further confirmed that, while section 70(5) of the 2022 Act requires the Tribunal to approach the substance of a subsidy appeal applying the same principles as would be applied on a judicial review, that did not import all of the associated procedures of the High Court. The Tribunal will, instead, apply its own, more flexible, rules and procedures.

Consistent with the Tribunal’s aim to keep subsidy control appeal “fast, cheap and simple”, a hearing of the appeal (filed on 3 February 2023) has been listed on 3 and 4 July 2023.

Michael Bowsher KC and Ligia Osepciu (instructed by Tilly, Bailey and Irvine LLP) represent the Appellant, The Durham Company.

Josh Holmes KC and Jack Williams appear for Symphony in the General Court

Yesterday (20 March 2023), Josh Holmes KC and Jack Williams appeared for Symphony Environmental Technologies PLC and Symphony Environmental Ltd (the Applicants) in the General Court (Luxembourg) in relation a damages action under Article 340 TFEU against the EU Institutions.

The Applicants allege that the EU institutions are non-contractually liable under Article 340(2) TFEU and Article 41(3) of the Charter of Fundamental Rights in respect of the adoption of Article 5 and Recital 15 (insofar as they apply to oxo-biodegradable plastic) of Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment (OJ L 155, 12.6.2019, p. 1–19) (“the Directive”).

Article 5 of the Directive directs that Member States “shall prohibit the placing on the market of the single-use plastic products listed in Part B of the Annex and of products made from oxo-degradable plastic”.

The Applicants argue that insofar as the restriction imposed by Article 5 of the Directive encompasses, by means of the definition of “oxo-degradable plastic” in Article 3(1) and (3), a total prohibition of the placing of oxo-biodegradable plastics on the market (“the Article 5 Prohibition”), it is unlawful. This is on the basis that the adoption of the Article 5 Prohibition is vitiated by procedural errors, breaches the principle of proportionality, is based on manifest errors of assessment and matters disconnected with the aim of the Directive, fails to take into account relevant considerations, is discriminatory and breaches the Applicants’ fundamental rights. Accordingly, they seek damages.

Josh and Jack are representing the Applicants in accordance with their continued rights of privilege and audience before the EU Courts under the arrangements in the Withdrawal Agreement for cases started before the end of the transition period. Both also retain rights of privilege to advise confidentially on any new matters of EU law and represent clients before the EU Courts on account of their being called to the Irish Bar (in addition to the Bar of England and Wales).

Nikolaus Grubeck and Alex Littlewood act for successful Claimants in Afghan interpreter national security challenge

Nikolaus Grubeck and Alex Littlewood acted for an Afghan national (‘AZ’) who worked as a patrol interpreter alongside British forces in Helmand province, in successfully challenging the Home Office’s refusal to allow him and his family to relocate to the UK.

AZ applied to relocate to the UK under the Government’s designated Scheme, on the basis that he had served on frontline duties in Helmand. The Scheme (like the Afghan Relocations and Assistance Policy which has now replaced it) aims to recognise the service provided to the British by locally employed staff in Afghanistan, and to provide them with appropriate support in light of the danger they face from the Taliban.

AZ was deemed eligible for relocation, but his and his family’s applications for visas were subsequently refused by the Home Office under the Immigration Rules, on alleged national security grounds. AZ challenged the Home Office’s decisions by way of judicial review in 2021, leading to those decisions being withdrawn. Fresh refusal decisions were issued, and following a further successful judicial review challenge were again withdrawn. The Home Office has now decided to issue visas to AZ and his family, allowing them to escape the dangerous situation they faced in Taliban-controlled Afghanistan.

Nikolaus and Alex were instructed by Erin Alcock of Leigh Day.

Guernsey Royal Court sets aside Guernsey Competition and Regulatory Authority decision on post-partnership restrictions on doctors’ practice

In the first judgment on an appeal against an infringement and penalty decision by the Guernsey Competition and Regulatory Authority (“GCRA”) under the Competition (Guernsey) Ordinance 2012, the Royal Court has set the decision aside, finding that it was unreasonable and based on material errors as to the facts. The Royal Court also set out the approach that it will take to appeals against GCRA decisions under the 2012 Ordinance.

The 2012 Ordinance is modelled on UK and EU competition law. The GCRA’s decision concerned the Medical Specialist Group (“MSG”), the partnership of specialist medical practitioners operating in Guernsey as part of its public health system. Doctors practising as associates or partners of the MSG agreed restrictions on their ability to practise privately in Guernsey after leaving the MSG (2 years for partners, 18 months for associates). . The GCRA considered that those restrictions were contrary to section 5(1) of the 2012 Ordinance (equivalent to the UK Chapter I prohibition or Article 101(1) TFEU), directed the MSG to remove those restrictions from its agreements with doctors and, in a separate decision, imposed a penalty of over £1.5m on the MSG.

In its appeal, the MSG argued that the restrictions were justified on the basis that the ability to practise privately and without immediate competition from former MSG doctors was critical to attracting specialist medical practitioners to Guernsey, and identified what it said were a number of errors in the GCRA’s analysis.

In his judgment, the Bailiff, the senior judge in Guernsey, held that the Royal Court was able to review GCRA decisions on a basis wider than traditional judicial review, so that the Court could consider any complaint made about the decision-making process or the decision reached. He found that the reasoning employed by the GCRA to support its rejection of the MSG’s justification for the restrictions was flawed in various respects and that the GCRA had failed to give evidence from GP practices sufficient weight. He set the infringement decision and penalty decision aside and remitted the matter to the GCRA for reconsideration in the light of his judgment.

The judgment establishes that the GCRA’s decisions are subject to detailed scrutiny by the Royal Court going well beyond traditional judicial review. It will also be of interest to anyone dealing with the application of the competition rules to post-termination restrictions on professional or specialist practice.

George Peretz KC assisted a Carey Olsen team led by Advocate Elaine Gray, of the Guernsey Bar, on behalf of MSG.

Judicial review: Changes to the ‘cost cap mechanism’ in public service pension schemes not unlawful

The Administrative Court today handed down judgment in R (Fire Brigades Union) v HM Treasury & SSHD (CO/4288/2021) and R (The British Medical Association) v HM Treasury & SS Health and Social Care (CO/4351/2021).

The two unions, the FBU and the BMA, brought judicial review challenges, which were heard together, to the decision of HM Treasury to make statutory directions contained in the Public Service Pensions (Valuation and Employer Costs Cap) (Amendment) Directions 2021. The challenges concerned the ‘Costs Cap Mechanism’ or ‘CCM’, which is a mechanism intended to control costs and changes in costs of public pension schemes and operates by modifying members’ benefits (and/or contributions to such schemes) should the measured cost of pension provision deviate from a set target. The CCM was modified by the 2021 Directions to reflect within the CCM the costs of what has been called ‘the McCloud Remedy’, which follows the decision in Lord Chancellor v McCloud & Ors. The costs of the McCloud Remedy are estimated to be £19 billion across the public service.

The Claimants brought a total of 8 grounds of challenge, namely: (1) Article 6 ECHR, (2) legitimate expectation, (3) Padfield, (4) indirect age, race and sex discrimination, (5) error of statutory interpretation, (6) failure to consult, (7) breach of PSED and (8) Tameside.

Mr Justice Choudhury dismissed the application for judicial review on all grounds. The unions are seeking permission to appeal.

Imogen Proud acted for HM Treasury, the Secretary of State for the Home Department and the Secretary of State for Health and Social Care, as part of a multi-chambers counsel team.

The judgment is available here.

Supreme Court: use of telecoms equipment can be blocked to protect national security

The Supreme Court today handed down judgment in R (VIP Communications Ltd) v Secretary of State for the Home Department, allowing the Secretary of State’s appeal and dismissing VIP’s application for judicial review.

The appeal concerned the Secretary of State’s powers to protect national security as well as public safety and other important interests in the telecoms context. The telecoms kit at issue in the case were Commercial Multi-User Gateways (or ‘COMUGS’) which allow callers to route landline calls onto a mobile network. COMUGs pose national security risks because, when a call is routed through COMUG, communications data about the call and the caller is masked.

The Supreme Court concluded that the Secretary of State had the power to prevent Ofcom from exempting COMUGs form any prior licensing requirement. The Court of Appeal and High Court had said that the Secretary of State lacked the power to give a direction to Ofcom on national security or public safety grounds preventing exemption from licensing requirements.

In reaching this conclusion, the Supreme Court dismissed the Court of Appeal’s reliance on the ‘clear words’ principle of statutory construction – that statutory duties can only be overridden or qualified using clear words – and concluded that, outside fundamental rights or rule of law cases, no such general principle exists.

Daniel Beard KC, Michael Armitage, Imogen Proud and Will Perry acted for the Secretary of State.