TikTok to be hit by a UK class-action-style lawsuit backed by the Children's Commissioner

And funded by private venture that'll take a chunk of the damages for itself


Chinese social media app TikTok is to be sued in the High Court as part of a class-action-style lawsuit due to be publicised by England's Children's Commissioner.

The case, filed two weeks before the end of 2020, was revealed because the person bringing it is an anonymised 12-year-old girl from London who acts with the backing of the Children's Commissioner, a British government agency that fancies itself as a tech regulator.

This unusual move was revealed in a High Court judgment handed down on 30 December by Mr Justice Warby in a case brought by "SMO" against three TikTok companies, including two of its Chinese owner Bytedance's companies and Musical.ly, TikTok's predecessor.

Even more unusually, it appears that despite the Children's Commissioner being a state-funded body, the lawsuit it is running on behalf of this 12-year-old girl is funded by private backers who will cream off a portion of the payout to line their own pockets.

"The intention is for the claimant, through the Commissioner, to bring a representative action pursuant to CPR 19.6, claiming those remedies on behalf of the claimant and all other children under 16 years of age who are or were users of TikTok and/or Musical.ly," said Mr Justice Warby in his judgment.

Although no further details of what the case is about were included in the English judgment, a very similar sounding case is going through the US courts. A 2019 filing [PDF] revealed that two children acting through their mothers sued TikTok and Bytedance. It stated: "Defendants, in a quest to generate profits, surreptitiously tracked, collected, and disclosed the personally identifiable information and/or viewing data of children under the age of 13 – without parental consent – while they were using Defendants' video social networking platform."

It went on to allege that children using TikTok were "being stalked on-line by adults", which the two children's mothers linked to their not being asked for parental consent before their kids signed up.

Public-private partnership

In the High Court's recent judgment, Mr Justice Warby said that the TikTok case would be funded in the same way as former Which? director Richard Lloyd's representative action case against Google, where a venture capital fund underwrote the legal bills in exchange for a substantial chunk of the damages paid out if the case was successful.

Barrister Anthony White QC for Google told the High Court in 2018, with reference to Lloyd's case: "The amounts could be very substantial indeed. If there are 4.4 million claimants, each entitled to several hundred pounds, under the current damages-based regime the maximum share is 50 per cent. If 50 per cent were taken by the funder, the amount generated in this action for the funder would be a very substantial sum of money."

Returning to the present case against TikTok, there was nothing in the judgment indicating who is funding the case or how much they hope to earn from underwriting it.

CPR 19.6 (found here), the procedure rule referred to by Mr Justice Warby, is the English law equivalent of a US class-action lawsuit. It allows large groups of people "who have the same interest" to take part in a court claim.

The Children's Commissioner has form for trying to pose as a tech regulator. Three years ago it issued a report that on the face of it called on tech companies to publish terms and conditions written in language children can understand. However, that report also said: "Swift regulatory action may be needed in order to protect children from being disadvantaged by the way their data is used, especially with regard to profiling and automated (and semi-automated) decision-making."

About a decade ago the commissioner also issued a report into tech-enabled child sexual exploitation and claimed that police were vastly underestimating the number of children at high risk of abuse, with an anonymous government source questioning the report's methodology and telling the BBC some of the language was "hysterical".

A spokesman for the Children's Commissioner did not immediately return a request for comment.

A TikTok spokesperson told The Register: "Privacy and safety are top priorities for TikTok and we have robust policies, processes and technologies in place to protect all users, and our younger users in particular. As this application was made without notice, we first became aware of the application and the High Court's judgment when it was filed and are currently considering its implications." ®


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