“My Data is Mine”
In the aftermath of the Cambridge Analytica scandal, four European Consumers Organisations launched on 30 May 2018 to coordinate collective actions against Facebook in Belgium (Test-Aankoop/Test-Achats), Italy (Altroconsumo), Spain (OCU) and Portugal (Deco-Proteste). The Consumers Organisations argue that Facebook has infringed both Data Protection and Consumer Rights legislations. The collective action is part of a wider campaign launched by several Consumers Organisations, members of Consumers International. The campaign, titled “My Data is Mine” (http://www.mydataismine.com/) includes a manifest calling for a change of paradigm, with “consumers as crucial catalysts of a more sustainable and responsible digital value chain to make the data economy flourish“.
Details as to the precise legal grounds on which the collective actions are based are still scarce. However, the bottom line of the Consumer Organisations’ position is that the Cambridge Analytica case is just one example of an economic model based on sharing and use of data without users being properly informed or having given their explicit consent for this purpose in breach of EU Data protection legislation. Moreover, the collective action also acts concerns Facebook’s allegedly unfair contract terms and unfair commercial practices.
Two Hundred Euro Per User
The Consumers Organisations intends to represent not only the interests of Facebook’s users affected by the Cambridge Analytica leak, but also the interests of any Facebook’s users. These organisations are demanding a minimum compensation of €200 per user as compensation for the alleged privacy infringements and unfair commercial practices the platform is responsible for.
The Belgian Consumers Organisation, Test-Aankoop/Test-Achats, has launched a broad advertisement campaign, including advertisements posted in public transport, calling for any of Facebook’s users to join the collective action. Although only 60,957 Belgians were reportedly affected by the Cambridge Analytica leak, the collective action introduced in Belgium now has close to 30,000 signatories.
Collective action procedures were introduced into Belgian law by the Class Action Act of the 28 March 2014. Collective actions are only available in disputes between consumers and undertakings. The action must relate either to an undertaking’s breach of contractual obligations, or the infringement of specific consumer protection rules, including privacy and data protection rights. A collective action is only admissible if a collective damage exists and in situations where such action is more appropriate than an individual action. In order to avoid excessive litigation, the right to start and to conduct the proceedings was exclusively granted to certain consumer organisations (in Belgium Test-Aankoop/Test-Achats).
In the Belgian case, a first hearing should take place at the end of October and should shed some light on the case. A decision on the admissibility of the collective action is then expected. If the collective action is admissible, the judge will then assess whether Data protection and Consumer rights rules have been infringed and will determine the amount of the compensation.
New Deal for Consumers
In the context of the entry into application of the General Data Protection Regulation which strengthens the rights of the data subjects, and in the context of the European Commission’s recent “New Deal for Consumers” legislative proposals which include a Proposal for a Directive establishing a cross-sector framework for collective representative actions and a Proposal for a Directive on better enforcement and modernisation of EU consumer protection rules, such collective actions are expected to become increasingly frequent.