London, November 26 (CMC4 – Disclosure; Day 2 of 2, PM session)
- Juniors Are Again Encouraged to Take More Active Roles
- Tribunal Keeps GDPR and DMA Art 5(2) in Scope Despite Meta’s Objections
- Meta Ordered to Disclose Cross-Platform Data Sharing With WhatsApp, Instagram, Oculus and Onavo
The afternoon session of Day 2 in the fourth case management conference (CMC) saw the Tribunal continue its methodical march through the Redfern schedule, resolving a significant number of remaining disputes and setting the framework for the final areas of disclosure to be negotiated ahead of Wednesday’s concluding session.
As throughout this CMC, Justice Hodge Malek KC maintained tight control over the process, repeatedly steering counsel back to proportionality, operational pragmatism and the need for a “workable, staged disclosure exercise.”
This collective action accuses Meta of abusing its dominance by imposing an “unfair bargain” on UK Facebook users: access to Facebook required consenting to Meta obtaining and exploiting vast quantities of off-Facebook personal data—data gathered from Instagram, WhatsApp, and millions of third-party websites and apps. Dr Liza Lovdahl Gormsen claims this amounted to an unfair price in data, extracted on a take-it-or-leave-it basis, with no payment or value returned to users.
Follow this link for Day 2, AM report.
Justice Malek again encourages junior counsel — on both sides
Early in the session, the Chair repeated his earlier calls for juniors to take more active role:
“We do want to encourage the juniors… we’re very conscious of that.”
The Tribunal spent much of the afternoon working through the remaining disclosure requests, with several important defeats for Meta.
The most consequential were Requests 47 and 49, where Meta attempted to limit disclosure about how Facebook data was shared across its wider family of products. The Class Representative argued these cross-platform flows were central to understanding the role of off-Facebook data in Meta’s business, and Justice Malek agreed.
He directed Meta to disclose data-sharing arrangements not only with Instagram and WhatsApp—which Meta accepted might be relevant—but also with Oculus and Onavo, rejecting the company’s attempt to confine the scope.
“The key ones in our view are WhatsApp and Instagram,”
he said, before extending the order to internal arrangements with the two additional products as well:
“Given the ruling we gave on Monday… it does make sense to give what’s on the other side of the coin.”
To see our Monday reports, follow the following links to the AM session and PM session.
The Tribunal also ruled against Meta on two privacy-law disputes. Meta sought to exclude references to the Digital Markets Act entirely, calling it a “distinct regime.” The Tribunal instead kept the DMA in—but only Article 5(2), which concerns data combination and user consent—and confirmed that both the GDPR and DPA 1998 must remain within scope:
“The DMA should be included, with a reference to Article 5(2).”
Another key ruling came in response to a request, where Meta resisted any disclosure relating to “addiction effects,” arguing the concept was speculative and appeared nowhere in the claim form. The Tribunal disagreed, holding that Meta’s own pleading about the “significant value” Facebook provides opened the door to exploring user engagement and behavioural design.
“Those passages in the reply bring the issue into the proceedings… We do not think disclosure on addiction effects would be burdensome or disproportionate.”
On other items, the Tribunal encouraged both sides to consolidate overlapping requests and continue applying the custodial-first approach.
Though the Tribunal made significant progress, several areas remained unresolved. Justice Malek indicated his expectation that the parties will work overnight:
“Between today and the next day your teams will work together… If not resolved, I’ll deal with it next time.”
He reiterated that the Tribunal is ready to assist “on a rolling basis”.
The Class Representative was represented by Sarah Ford KC (Brick Court), instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.
Meta was represented by Tony Singla KC (Brick Court), instruced by Herbert Smith Freehills Kramer LLP.
The case is 1433/7/7/22 Dr Liza Lovdahl Gormsen v Meta Platforms, Inc. and Others in the CAT.
