Ius Omnibus v TikTok (≥ 13)
Ius submitted in April 2023, at the Lisbon District Court, a popular action aimed at protecting consumers residing in Portugal against illegal practices of TikTok and restore legality.
Since at least August 2018, TikTok has engaged in misleading business practices, processed special categories of personal data without obtaining users’ consent, adopted terms of service, privacy and cookie policies that are difficult for users to understand, and failed to clarify in detail and in a meaningful way all categories of users’ personal data that are processed, how they are collected and how they will be processed and shared, including for data transferred to and stored in countries outside the European Economic Area.
Thus, TikTok is in violation of fundamental rights guaranteed by the Constitution of the Portuguese Republic, of personality rights, of the Portuguese Unfair Commercial Practices Law, of the Portuguese Charter on Human Rights in the Digital Age, and of the EU General Data Protection Regulation.
In case of success, the action will lead to TikTok putting an end to the unlawful practices and to compensate the represented consumers.
Ius Omnibus is represented in this case by the law firm Sousa Ferro & Associados and by Pais de Vasconcelos & Associados.
More information coming soon.
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 commercial 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, Articles 5, 6(a), 7(1)(a) and (b) and 9(1)(a) and (b) of the Portuguese Unfair Commercial Practices Act, 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 are the unlawful behaviors of TikTok?
This case concerns the adoption of misleading business practices, the violation of privacy, and the improper processing of personal data of users of the TikTok platform residing in Portugal. TikTok collects, processes and transmits personal data without users’ due consent. It adopts terms of service, privacy and cookie policies that are not easily understood by users. It fails to clarify in detail and in a perceptible way all categories of users’ personal data that is processed, how it is collected and how it will be processed and shared, including 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, after August 3, 2018, on their first use of the TikTok Platform or at a moment thereafter were at least 13 years old. They will only be represented in this action for the period they have been TikTok users aged 13 and over.
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).
Consumers who do not wish to be represented in this action, may exercise the right to opt-out by communicating this intention to the court, through their legal representatives if the consumer is a minor. Consumers may also decide to intervene in the proceedings, through their legal representatives if the consumer is a minor, 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, since August 3, 2018, and still ongoing, of the identified interests, causing damage directly to users who, on their first use of the TikTok Platform or later were 13 years old.
b) Order TikTok to put an end to the unlawful conduct at issue;
c) Order that the represented consumers be compensated for the damage they suffered as a result of the practice 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 TikTok to 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 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 August 3, 2018, on their first use of the TikTok Platform or later were 13 years old or older are represented in this popular action.
If they do not wish to be represented, they will have to exercise the right to opt-out, through their legal representatives if the consumer is a minor.
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 case, if successful, they will have to contact the entity appointed by the Court to request compensation, through their legal representatives if the consumer is a minor. 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, through their legal representatives if the consumer is a minor.
All consumers represented in this action are invited to contact Ius Omnibus at once, through their legal representatives if the consumer is a minor, 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.
How is this action funded?
Preparing an action of this nature in an adequate way, which allows for its success, is extremely costly, requiring the hiring of specialized lawyers and consultants. The action’s success is dependent on suitably handling very broad and technical facts and an extremely complex area of legal-economic knowledge, as well as reacting effectively to the vast financial and human resources which will be deployed by the other side, who benefits from profound information asymmetry.
The lack of financial resources by consumer protection associations is one of the, if not the main factor which accounts for why these legal mechanisms have not been more used so far. Indeed, in the absence of public funds which can be used to finance popular actions of this nature, it is impossible for an individual consumer or an association of consumers to take on the several hundreds of thousands of euros in costs which inevitably are required to pursue such an action.
The only way to pursue an action of this type it to resort to litigation funding. The practice of litigation funding is well established in other EU Member States and it is now beginning to be used in Portugal. As was noted by the UK’s Competition Appeal Tribunal in the Mastercard case, the action would have been impossible without funding, and so to refuse the possibility of such funding and the remuneration of the funder would be to deny access to justice and the exercise of the rights in question.
The present action is funded by Augusta, a litigation funder headquartered in the United Kingdom.
The funder assumes all costs of Ius Omnibus’ costs of the litigation and all its risks. It will only recoup its investment if the action is successful, if and to the extent the Court authorizes it, and if enough money remains in the global compensation fund, after distribution of compensations to consumers who request their share. Under these conditions, Ius Omnibus committed to returning to the funder the money it invested, plus a fair remuneration for the risk and time it was deprived of its capital, the proportionality of which will be assessed and controlled by the Court.
The funding agreement guarantees the prevention of money laundering and terrorism financing and the transparency of the source of funding before the Court.
This funding model ensures that consumers will not have to bear any of the costs of pursuing this action, and that any consumer who claims their share of the compensation at the end of the case will be entitled to 100% of his/her compensation.
Diário de Notícias (05-04-2023)
Correio da Manhã (05-04-2023)
Expresso – Podcast Diário (05-04-2023)
Nascer do SOL (05-04-2023)
RTP Notícias – Jornal da Tarde (05-04-2023)
Antena 1 (05-04-2023)
Diario de Sevilla (05-04-2023)
Sapo 24 (06-04-2023)
TVI – Esta Manhã (06-04-2023)
Business Times (06-04-2023)
There are no public documents available pertaining to this case.