Ius Omnibus v PubMatic
Ius submitted in September 2023, at the Lisbon District Court, a popular action aimed at protecting users who have accessed websites, applications and other platforms through which cookies and other PubMatic tracking technologies have been placed on the devices they use, who are at least 13 years old, resident in Portugal, against PubMatic’s illegal practices and to restore legality.
Since at least August 2012, PubMatic has adopted unlawful practices, installed cookies and other tracking technologies and processed personal data without obtaining users’ consent, adopted non-transparent conditions and failed to properly clarify how it collects, processes and shares data, namely by sending it outside the European Union. Thus, PubMatic is in violation of fundamental rights guaranteed by the Constitution of the Portuguese Republic, of personality rights, of the EU General Data Protection Regulation, and the Act on the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector.
In case it is successful, the action will lead, inter alia, to PubMatic putting an end to the unlawful practices and to compensate the injured consumers.
What is the object of this action?
It is a popular action for the protection of consumer relations and privacy, protection of personal data and defense of homogeneous individual interests of consumers, brought by Ius Omnibus.
It is a claim to defend the represented consumer rights, brought under Articles 52(3) and 60(3) of the Constitution, the Popular Action Act (Law no. 83/95) and Articles 31 and 546(2) of the Portuguese Code of Civil Procedure, for practices violating Articles 26(1), 35(1), (4) and 60(1) of the Constitution, Articles 70(1) and 80(1) of the Portuguese Civil Code, Article 5(1) of the Act on the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector, Articles 8(2), 9(1), 12(1), 14(1)(a), (b) and (c), 17(2), 20(1) and (2) of the Portuguese Charter on Human Rights in the Digital Age, and Articles 5(1)(a),(b),(c),(e) and (f) 6(1)(a), 7(1) and (2)(a), 9(1),(2)(a), 12(1), 13(1)(a),(c),(d), (e) and (f), (2),(a) and (f) , 22(1),(2)(c), 24, 25(1) and (2), 44 and 49(1)(a) of the EU General Data Protection Regulation.
What were the unlawful behaviors of PubMatic?
This case concerns the violation of privacy, the improper installation of cookies and other tracking technologies, and the improper processing of the personal data of users, aged at least 13, resident in Portugal, who have accessed websites, applications and other platforms through which PubMatic tracking technologies have been installed on their devices.
PubMatic places cookies and other tracking technologies on consumers’ devices without obtaining their consent. It adopts privacy and cookie policies that are difficult for users to understand. It does not clarify in detail and in a comprehensible way all the categories of user data that are processed, how they are collected and how they are processed and shared, particularly with regard to data transferred to and stored in countries outside the European Economic Area.
Who is represented in this action?
This popular action represents all consumers residing in Portugal who, between 30 August 2012 and the date on which the consumers are summoned for the purposes of this action, accessed websites, applications and other platforms through which PubMatic’s cookies and other tracking technologies were placed on the devices used, and were at least 13 years old.
Represented consumers do not have to do anything to be represented and to be entitled to compensation in the event of a successful action (only having to request their compensation at that time).
Any represented consumer who does not wish to be represented in this action, may exercise the right to opt-out by communicating, through their legal representatives, this intention to the court. Represented consumers may also decide to intervene in the proceedings, through their legal representatives, in support of Ius Omnibus, within the period to be fixed by the Court.
What is Ius Omnibus seeking?
Ius is asking the Court to:
a) Declare the infringement, still ongoing, of the identified interests, causing damage directly to consumers who, after 30 August 2012 have accessed websites, applications and other platforms through which PubMatic’s cookies and other tracking technologies were placed on the devices used, and were at least 13 years old;
b) Order PubMatic to put an end to the unlawful conducts;
c) Order that the represented consumers be compensated for the damages they suffered as a result of the practices in question.
How does the popular action and the compensation of consumers work?
The mass consumer compensation mechanism used here, provided for in the Portuguese rules of class action, has never been tested in practice until the very last step. However, according to the law, the following will happen if the court finds in favour of Ius Omnibus:
i) the Court will set the overall amount of damages to be paid by PubMatic to the represented consumers, to be deposited in a compensation fund;
ii) the Court will designate an entity responsible for managing the compensation fund, including the receipt, management and payment of compensation to the injured consumers;
iii) the Court will set a deadline for consumers to claim their share of the compensation and this information will be publicized in various ways;
iv) consumers will have to contact the entity that manages the compensation fund, as well as submit the court-decided evidence and the respective payment instructions, in order to receive their share of the compensation;
v) at the end of the legally established period, if a part remains of the global compensation that was not requested by consumers:
(i) that amount will be used to pay the expenses incurred by Ius Omnibus as a result of the action; and
(ii) what is left will be handed over to the Ministry of Justice, to be used to support access to law and justice, including the promotion of popular actions.
Do consumers need to contact the Court or Ius Omnibus?
Consumers do not have to contact the Court or Ius Omnibus, nonetheless it may be in their interest to do so.
All consumers residing in Portugal who, after 30 August 2012 have accessed websites, applications and other platforms through which PubMatic’s cookies and other tracking technologies were placed on the devices used, and were at least 13 years old, are represented in this popular action.
If they do not wish to be represented, they will have to exercise the right to opt-out.
If they do want to be represented, they do not need to do anything else for now to be entitled to compensation if Ius Omnibus wins this claim.
At the end of the process, if successful, they will have to contact the entity appointed by the Court to request compensation, themselves or through their legal representatives.
However, if they wish to intervene in the action in support of Ius Omnibus they may do so, within the time limit established by the Court.
All represented consumers in this action are invited to contact Ius Omnibus at once, so that their data be registered and they be informed by Ius of all developments in this case, guaranteeing that they don’t miss the deadline to claim compensation, when that moment arrives.
There are no public documents available pertaining to this case
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