Last December, we wrote about the increasing number of class actions brought in the Netherlands as a result of alleged breaches of privacy/data protection legislation. Those claims are examples of what seems to be an emerging trend in the Netherlands: class actions brought against ‘big tech’ companies. The Netherlands rapidly seems to become the European venue for class actions, which has everything to do with the introduction of the Dutch Collective Damages in Class Actions Act (Dutch acronym WAMCA) in January 2020. The WAMCA allows interest organizations to claim monetary damages, whereas the pre-WAMCA regime merely allows for declaratory relief.
Throughout Europe, class actions are brought against ‘big tech’ companies. For example, Euroconsumers, a coalition of European consumers’ rights organizations, has brought cases in Belgium, Italy, Spain and Portugal against Facebook for alleged misuse of user data, and against Apple for allegedly planning the obsolescence of its products. Other examples include Lloyd v. Google relating to the placement of data-collecting cookies in the United Kingdom, and Max Schrems v. Facebook Ireland for violations of the GDPR in Austria.
Dutch class actions against big tech companies
This development can also be seen in the Netherlands, where big tech companies are increasingly being targeted by class actions. Examples of class actions brought against big tech companies in the Netherlands include the claims against Apple, the claims against TikTok for multiple privacy/data protection violations relating to the collecting and processing of the personal data and a collective action against AirBnB for charging service fees to both renters and landlords.
Reference is also made to the claim of The Privacy Collective against data brokers Oracle and Salesforce for alleged violations of data protection laws. Recently, the Amsterdam district court ruled that The Privacy Collective was inadmissible because it failed to substantiate it was sufficiently representative of the Dutch internet users it allegedly represent. The Dutch court ruled that the likes received via the support button on its website did not suffice in this respect. The appeal is currently pending.
Recently, three separate interest organizations, Stichting Right to Consumer Justice (SRCJ), Stichting App Stores Claims (SASC) and Stichting Consumenten Competition Claims (SCCC) brought claims against Apple. Each interest organization claims that Apple abused its position as the sole gatekeeper of installing applications on devices with its iOS operating system by charging a provision on each sale via its App Store. SCCC has announced that it is also preparing a similar claim against Google. Each of the interest organizations is funded by a (foreign) litigation funder or law firm, with maximal compensations of approximately 25% of the total damages awarded.
The claims vary in scope: where SRCJ and SASC limit themselves to customers of the Dutch App Store, SCCC casts its net more widely to include all European consumers. SASC’s estimates the damages around EUR 236 million (for Dutch customers only), while SCCC claims an advance of EUR 5 billion (for all European customers). In all cases, the exact amount of damages per customer is still to be determined by the court.