Who next for 7 seconds of fame? Representative action SMO v TikTok discontinued shortly after getting started

If you search online for “how to win at TikTok”, you’ll soon land on the 7 second theory: the most successful TikTok videos are limited to 7 seconds. The idea being that users will happily grant you 7 second of fame before swiping onto the next video. However, the same logic does not hold as a winning strategy for representative litigation (a kind of opt-in class action) in the data protection sphere. The most recent such representative claim, against a variety of TikTok companies, has been discontinued by the Claimant. It had, by lawyers’ standards, an analogously short lifecycle on our screens but with notably less success.

The claim only really got going in late February of this year, had a high profile High Court hearing in front of Nicklin J in March (which did not go well for the Claimant but kept the claim just about alive) and has now been discontinued. Robin Hopkins’ post on Nicklin J’s March judgment (SMO v TikTok Inc. and Others [2022] EWHC 489 (QB)) sets out the procedural background to that point (here).

The next move was to be TikTok’s application for strike out, on the basis that the Supreme Court’s judgment in Lloyd v Google LLC [2021] UKSC 50 was fatal to the claim. Rupert Paines’ post on the Supreme Court’s Lloyd judgment is worth a re-read at this point (here). In Lloyd the Supreme Court held that a representative action under CPR 19.6 could be brought to establish liability but that damages could only be determined following individualised assessment (which the Supreme Court described as a “bifurcated process”) and that damages were not available under the Data Protection Act 1998 merely for “loss of control” of personal data without proof of damage or distress. Technically, there is an argument to be had about whether that reasoning applies identically under the Data Protection Act 2018 and the UK GDPR, but it is widely considered that that is the case.

Following the Supreme Court’s judgment in Lloyd, claimants have been withdrawing a series of representative actions (claiming uniform damages without individualised evidence of loss) almost as quickly as they brought them following Mr Lloyd’s interim success in the Court of Appeal (including against Oracle, Salesforce and YouTube). This has hastened a trend that had begun even before the Supreme Court handed down judgment, as claimants predicted what the Supreme Court would ultimately decide: see, for example, Anya Proops’ post on the Atkinson v Equifax Ltd representative action, which was withdrawn several months before the Supreme Court’s judgment here.

The discontinuance of the claim against TikTok is the latest in this series. It went more viral and stayed on our screens for less time but, for all of that, the claim was no more successful than its predecessors. The question now for claimants considering representative data protection claims is whether the bifurcated process that is possible in light of Lloyd v Google is sufficiently attractive. The trend is against them, but if social media teaches us anything it is that trends can change quickly.

Anya Proops QC, Chris Knight and Zac Sammour acted for the Defendant throughout, instructed by Hogan Lovells International LLP.

Ben Mitchell