In an anticipated ruling, the Amsterdam Court of Appeal ruled last week that The Privacy Collective (TPC) is admissible in its collective claims against tech giants Oracle and Salesforce. The ruling marks an important advance for the realization of collective action rights under the Mass Mass Action Settlement Act (WAMCA) and the General Data Protection Regulation (AVG).
Now that the foundation is admissible, further litigation on the alleged privacy violations by the Adtech companies and their potential liability under the AVG and WAMCA can proceed. Attorney for TPC, Christiaan Alberdingk Thijm, shared the following on LinkedIn: "For now, we celebrate this great victory for collection action law. If the court's ruling had stood, it would make it much more difficult to fight large-scale privacy infringements." (1)
TPC accuses Oracle and Salesforce of unlawfully collecting personal data from an estimated ten million Dutch Internet users through tracking cookies. This data is allegedly used to compile profiles, so-called shadow profiles, which are then automatically sold through Real Time Bidding. TPC claims both measures to stop these practices and immaterial damages of €500 per user. The total amount claimed is €10 billion. In an earlier article we summarized the substantive thrust of the case in more detail.
The Court made some principled rulings (2) that are of great importance for future class actions under the WAMCA and the AVG. First, the Court ruled that TPC is admissible, and that the support it gathered through interest groups counts toward its representativeness. This is a significant ruling, as the Amsterdam court had previously ruled that TPC did not meet the representativeness requirements. The Court emphasized that the WAMCA does not contain a strict numerical criterion for representativeness, meaning that the quality and nature of the support is more important than the exact number of supporters.
In addition, the Court confirmed that giving support via a support button on TPC's website also counts toward representativeness. This means that it becomes easier to collect support without simultaneously collecting extensive personal information. In line with this, the Court ruled that it is not necessary for supporters to leave an email address to organize participation, which increases the accessibility of collecting support.
Another important ruling is that the WAMCA allows for the use of categories of injured persons, making it unnecessary for all individual constituency members to have suffered the same intangible harm. This allows a wider range of injury claims to be bundled into one class action.
The Court further stated that TPC's admissibility must be reviewed based on the present circumstances (ex nunc). This means that adjustments and improvements made by TPC since the original ruling by the court are now included in the assessment. Finally, the Court suggested that preliminary questions may need to be asked about the interpretation of Art. 80(2) and 82 AVG (regarding representation and damages respectively).
The Court has announced that a pre-trial hearing will take place in August, at which the parties can comment on the further progress of the proceedings. An important question here is whether the Amsterdam Court of Appeal will keep the case to itself or refer it back to the district court.
https://www.linkedin.com/feed/update/urn:li:activity:7208759657593516033/
https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:GHAMS:2024:1651
