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SMO (by her litigation friend Anne Longfield) v (1) TikTok Inc. (2) TikTok Information Technologies Limited (3) TikTok Technology Limited (4) Bytedance Limited (5) Beijing Bytedance Technology Co. Limited (6) Musical.ly [2022] EWHC 489 (QB)
As has been well publicised the now former Children’s Commissioner has involved herself as litigation friend to a 12-year-old who brings a claim against TikTok. It is alleged by the Claimant that the six Defendants were responsible for processing children’s personal data, for invading their privacy and misusing the children’s private information.
The Claimant brings a claim both her own behalf and as a representative claim on behalf of a class of children, namely all those who are, or were, account holders and users of TikTok from 25 May 2018, who were (a) resident in the UK or the European Economic Area (“EEA”); and (b) under the “relevant age”, 13 years old in the UK and (generally) 16 years old in the EEA.
This claim is one of the few remaining mass data claims after the Lloyd v Google decision and is brought under the ‘representative action’ mechanism.
In a preliminary hearing at very short notice, Nicklin J considered the issues and whether the case was sufficiently different from Lloyd v Google. With some reservation he allowed the claim to continue and allowed it to be served on several defendants, notably TikTok’s Chinese, US and Cayman Island entities. The fifth defendant was a separate Chinese entity.
The claim was issued on 30 December 2020 in order to take a pre-Brexit advantage. Three months elapsed before the claim was stayed pending the Supreme Court decision in Lloyd v Google. Once that was handed down on 10 November, the parties had 28 days before the stay was lifted and clock started ticking again.
It was not until January 2022 that the Claimant’s solicitors enquired as to the time for service on D5 in China. They were told it could be over a year, making the existing deadline impossible to meet. It then took a further 6 weeks for the Claimant to apply for an extension.
The Judge dismissed the application for an extension of time and service out. The Claimant had failed to deal with service in a timely manner until about a week before the time for doing so was due to expire.
The claim against the remaining defendants survives, for now – but TikTok have indicated that it will be the subject of a strike out application, post Lloyd v Google.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
