Ius Omnibus v TikTok (<13)
Ius submitted in April 2023, at the Lisbon District Court, a popular action aimed at protecting minors under 13 years old residing in Portugal against illegal practices of TikTok and restore legality.
TikTok claims not to authorise the use of the platform by children under the age of 13. However, TikTok does not implement mechanisms to prevent registration and use of the TikTok platform by these minors without proper authorisation from the holders of parental responsibilities. Nor does it adopt mechanisms for their protection, ending up collecting and processing their personal data, damaging them and exposing them to dangers to their moral, psychological and physical integrity and to their safety and health, as well as to the intimacy of their private and family life. Thus, TikTok is in violation of fundamental rights guaranteed by the Constitution of the Portuguese Republic, of personality rights, of the Unfair Commercial Practices Law and of the EU General Data Protection Regulation.
In case of success, the action will lead, inter alia, to TikTok putting an end to the unlawful practices and to compensate the children represented.
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 defense of diffuse and/or collective interests of moral, psychological and physical integrity and health of citizens, the protection of childhood, the protection of the free development of the personality and self-determination of minors, the protection of personal data, the protection of consumer relations and the protection of privacy and homogeneous individual interests of consumers, brought by Ius Omnibus.
It is a claim to defend the right of represented consumers, 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 Code of Civil Procedure, for commercial practices violating Articles 25(1), 26(1), 27(1), 35(4) and 60(1) of the Constitution, Articles 70(1), 80(1), 280(1) and (2) and 294 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, and Articles 5(1)(a), 6(1)(a) and 8(1) and (2) of the EU General Data Protection Regulation.
What are the unlawful behaviors of TikTok?
This case concerns the lack of implementation of effective mechanisms preventing the registration and use of the TikTok platform by under-13s without the due parental authorisation, and the absence of mechanisms for their protection, resulting in the collection and processing of personal data of minors and exposure of children to dangers to their moral, psychological and physical integrity and to their safety and health, as well as to their privacy. Thus, TikTok profits from children under the age of 13, taking advantage of their particular vulnerability.
Who is represented in this action?
All consumers resident in Portugal who, after 3 August 2018, have used the TikTok platform and who, on their first use, had not yet reached the age of 13 years are represented in this popular action. They will only be represented in this action in relation to the period when they were users of TikTok and were not yet 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 minors aged 13 years who after 3 August 2018 have used TikTok’s platform and who, on their first use, had not yet reached the age of 13 years, until the moment they reached the age of 13 years;
b) Order TikTok to put an end to the unlawful conduct at issue;
c) Order that the represented consumers be compensated for the damages 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 minors under 13 years old resident in Portugal who after 3 August 2018 have used the TikTok platform and who, on their first use, had not yet reached the age of 13 years old are automatically represented in this popular action.
If they do not wish to be represented, the represented consumers, or their legal representatives, will have to exercise the right to opt-out.
If they 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, themselves or through their legal representatives.
However, if they wish to intervene in the action in support of Ius Omnibus they may do so, through their legal representatives, within the time limit established by the Court.
All represented consumers in this action are invited to contact Ius Omnibus at once, through their legal representatives, 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.