SMO (A Child) by their litigation friend, Anne Longfield [acting as a representative claimant pursuant to CPR 19.6] v Tiktok Inc.

Hearing date: 30 December 2020

Approved Judgment

I direct that that copies of this version as handed down may be treated as authentic.

This is a pre-action application for anonymity on behalf of a child claimant in an intended claim for breach of privacy.

The Children's Commissioner for England, Anne Longfield, intends to bring an action on behalf of a 12-year-old child against six corporate defendants said to be involved in or responsible for the operation of the social media platform TikTok and its “effective predecessor” Musical.ly. The Commissioner acts as the claimant's litigation friend. The allegation is that the defendants have misused the claimant's private information and processed the claimant's personal data in breach of the duties imposed by the General Data Protection Regulation (GDPR) 2016/679/EU and the UK GDPR. The remedies sought are a declaration, damages, injunctions, and orders for erasure of the data in question. The damages claimed are for “loss of control of personal data”.

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. The scheme is clearly inspired by the representative action brought by the claimant in Lloyd v Google LLC, and approved by the Court of Appeal in a judgment ( [2019] EWCA Civ 1599 [2020] QB 747) an appeal against which is currently pending in the Supreme Court.

The application now before me is for permission to issue the proceedings under a pseudonym. The application relies on CPR 16 and 39.2, and is made without notice, as is appropriate for such an application: CVB v MGN Ltd [2012] EWHC 1148 (QB). The notice of application for that purpose was filed via the electronic CE File system shortly after 4pm on Sunday 20 December 2020, supported by a witness statement of Tom Southwell, a partner in the claimant's solicitors' firm. At that stage, the claimant was also seeking an order restricting third-party access to documents on the Court file, pursuant to CPR 5.4C – sometimes known as “sealing the file”. The application notice sought an immediate hearing, in private.

The following day was the last day of the Legal Term. The case is unusual, and the application also. For those reasons, and because Part 53 requires the claim to be issued in the Media and Communications List, the application was referred to me by the Senior Master and the assigned Master. I first saw it mid-morning on Monday 21 December 2020, as I was finalising a judgment for hand-down at 2pm. In addition to the application notice and evidence there was a skeleton argument from Leading and Junior Counsel.

Having read the papers, it was clear that those representing the claimant do not wish to press on with the case until the outcome of the appeal in Lloyd v Google is known. But they were keen to issue the claim before the year end. The papers explained that the urgency stemmed from the fact that the end of the Brexit transition period on 31 December 2020 will bring about changes in the law which are, or are at least said to be, relevant to the intended claim. One change relates to the GDPR. It is said that under the law as it stands before the end of the period this Court has jurisdiction over that aspect of the claim and over the Second Intended Defendant, which is a company registered in England and Wales. The position from 1 January 20201 is “less clear”; jurisdiction will be decided on the basis of the common law rules “which may prejudice the ability of the claimant to bring the claim and/or defend any jurisdictional challenge brought by the Intended Defendants”. I quote from the first witness statement of Mr Southwell. Secondly, the evidence suggests, service of proceedings on the Third Intended Defendant in 2020 will be possible under the Judgments Regulation without further procedures; in 2021 the Court's permission will be required. The third point about the changes in the law is of greater significance. It is put this way in the skeleton argument for the claimant:

“Further, and crucially, if these intended proceedings are issued prior to 1 January 2021, any judgment given is enforceable in Member States without further procedures. If the proceedings are issued from 1 January 2021 onwards, local laws of each Member State will apply which could severely impact and/or prejudice to Claimant's ability to enforce.”

All of this may be correct, but it did not explain why the application was made only ten days before all these changes came into effect, and on the very last normal working day of the legal year. An explanation for that was given in the skeleton argument. This said that it was “not possible” to make the application sooner due to the need to arrange third-party funding. This had been a detailed and complex undertaking which “only became sufficiently far advanced” on Friday 18 December 2020. The skeleton argument did not give detail, which is reasonable; that would be a matter for evidence. But the witness statement did not add anything.

It is inevitably inconvenient to confront the Court with an application filed on the last day of term, demanding an immediate hearing. During the pandemic, the Court's resources have become unusually stretched. The normal case load has been managed, with few exceptions. But this was far from a routine application. The claim was novel if not unique. It was to be brought against a multiplicity of parties, all but one of them foreign to England and Wales. If it might be prejudicial to the claimant and those whom it was intended to represent for the proceedings to be issued in 2021, undue haste to get them issued in 2020 might be correspondingly prejudicial to the defendants, or some of them. Besides the dearth of evidence about the reasons for lateness, there were a number of aspects of the claimant's paperwork that seemed to call for consideration.

(1) The only information provided about the claimant was their age. Permission to issue proceedings anonymously is one thing. A right to bring a claim on behalf of a person whose identity is known but kept secret from the Court has never yet been recognised.

(2) Reliance was placed on the practice in relation to settlements affecting, where anonymity is the norm ( JX MX (A Child) v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96); but that is an exception to the general rule of open justice, which did not seem to me analogous to this case.

(3) The evidence seeking to justify anonymity for this particular claimant was in very general terms, saying little more than that the attention the case itself was likely to attract would “include attention directed toward the claimant”.

(4) I could see no need to hear the application in private; as no identifying material was being put before the Court, it should be easy to ensure that no such material was made public during the hearing.

(5) I could not see the justification for a “blanket” order sealing the file which was sought by the application notice. If the application succeeds, the court file can be anonymised and third-party access to the “open” parts of the file could not be harmful.

Other demands on my own time and that of the other Media and Communications List Judges meant that there was very little time available to review the evidence and argument fully, consider all the implications, and conduct a satisfactory hearing. On the evidence before me I simply could not assess whether the urgency and last-minute nature of the application were due to unreasonable delay on the part of those representing the claimant. Accordingly, on the afternoon of Monday 21 December 2020 I made an order “on the papers” fixing a hearing during the vacation, but within the calendar year. I have heard the application today, Wednesday 30 December 2020, remotely via Microsoft Teams, but in open court, in public, in the presence of one reporter.

In response to observations I made in the reasons for my Order dated 21 December, the claimant's representatives have submitted further evidence (two statements from Mr Southwell and one from the Commissioner), a revised draft order, and a supplemental skeleton argument. The application to seal the file is no longer pursued; the only issue is anonymity. Part of the evidence is confidential (a short statement from Mr Southwell giving the claimant's name, address, and other details).

Mr Southwell's second statement provides details of the process by which agreement on funding was arrived at. Without waiving privilege, he has been able to provide information about the nature of the negotiations, the timing, and the sources from whom advice was taken. On the evidence now before me, I do not consider that there has been undue delay such as should deter me from resolving the application forthwith.

Some of the claimant's paperwork devotes attention to the importance...