Meta Platforms v Lovdahl Gormsen: Court of Appeal permits user damages claim in Facebook data case

The Court of Appeal has dismissed Meta's challenge to a Competition Appeal Tribunal ruling permitting an amendment that opens the door to a claim for "user damages" in the £46 million-strong collective action brought against it over its collection and monetisation of Facebook users' off-platform data.

The judgement, handed down by Lord Justice Green, with whom Lord Justice Phillips and Lord Justice Zacaroli agreed, on 29 July 2026, arises from opt-out proceedings brought under section 47B of the Competition Act 1998 by class representative Dr Liza Lovdahl Gormsen on behalf of more than 46 million UK Facebook users. The claim alleges that Meta abused a dominant position in breach of section 18 of the Act by requiring users, on a take-it-or-leave-it basis, to permit the collection of data generated by their activity away from the Facebook platform, without any corresponding payment, either by charging an unfairly high price for its services or by paying an unfairly low price for the data itself.

Meta's defence includes a denial that any conventional pecuniary loss flows from the alleged abuse, asserting that in the counterfactual scenario it would never have made monetary payments to users, since no comparable online platform does so. In response, the class representative sought permission to add an alternative claim for user damages, calculated using a Nash bargaining model to estimate the outcome of a hypothetical negotiation between Meta and users for the right to collect their data, arguing that the hypothetical nature of the exercise makes Meta's real-world reluctance to negotiate irrelevant. The Tribunal allowed the amendment, both as a case management matter and because it considered the underlying legal question arguable, and Meta appealed.

Lord Justice Green upheld the Tribunal's case management decision, emphasising the well-established principle that developing areas of law are generally unsuitable for determination on hypothetical or incomplete facts, and noting that the trial, already listed for ten weeks in 2028, would proceed regardless of the outcome of this appeal. He went on, however, to address the substantive legal arguments in detail, given their significance.

Meta's central submission was that user damages, a compensatory remedy allowing a claimant to recover the reasonable value of a defendant's wrongful use of an asset, remain confined to a fixed list of proprietary torts established in Stoke-on-Trent City Council v W & J Wass, as interpreted by the Court of Appeal in Devenish Nutrition v Sanofi-Aventis, and do not extend to statutory competition claims. Lord Justice Green rejected that reading of the authorities. Properly understood, neither Wass nor Devenish established a closed category, and the reasoning in Devenish addressed only the distinct question of a restitutionary account of profits, not user damages as such. He found further support in a line of more recent authority, including the Supreme Court's decision in One Step v Morris-Garner, which recast user damages as a compensatory tool available wherever a defendant has effectively taken a valuable, controllable asset for nothing, and the Supreme Court's observations in Lloyd v Google, which recognised that personal data of the kind at issue in that case could readily attract such an award in a claim for misuse of private information. He also rejected Meta's arguments that section 18 does not protect property-type rights and that any consent given by users defeats the claim, noting that consent said to have been extracted through unlawful, exploitative terms could not straightforwardly bar a remedy.

The appeal was accordingly dismissed, leaving the availability of user damages as a remedy for abuse of dominance to be determined at trial alongside the underlying question of whether Meta's conduct was unlawful in the first place.