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Privacy Surgeon launches EU initiative to accelerate class action claims for breaches of privacy and data protection

By Simon Davies

The Privacy Surgeon has launched an EU-wide initiative to massively increase the number of class action legal claims against governments, security services and corporations. The aim of this ambitious exercise is to force greater accountability from such organisations by supporting anyone in Europe to participate in litigation.

The concept of class action suits – particularly in the areas of privacy, surveillance and data protection – has not been adequately explored in Europe. I believe the legal landscape has now shifted to the point where the time is right for such an initiative.

Class action suits are common in the United States, but less so in Europe. In this type of legal action, a person may initiate a case on behalf of an indefinite number of named (or even unnamed) people who have been affected by a wrongdoing. There are many such scenarios. One obvious case is where an organisation has been responsible for a data breach. Another would be where a court decides that a government agency has breached privacy rules.

The aim of this ambitious exercise is to force greater accountability from such organisations by supporting anyone in Europe to participate in litigation.

Unfortunately, this type of case is not recognised in some parts of Europe, for example in the United Kingdom, where such actions fell into disuse in the 19th century. However other EU countries have recently recognised the right of class action. Belgium and France have in recent years strengthened the right of citizens to bring class actions. Other countries such as Austria have taken a different route by empowering consumer organisations to bring such claims. Sadly, the laws of some countries restrict this type of action to consumer claims against companies. Actions against governments are not always possible.

However it is the Netherlands that offers the most promising chance to accelerate mass actions against both the state and the private sector.

Dutch law now explicitly facilitates collective action for declaratory and injunctive relief (though there is a Bill pending in the Dutch lower house that would allow actual damages to be awarded). The current “WCAM” (collective settlement) procedure offers an effective route to work towards a class settlement. Importantly, a 2012 decision by the Dutch High Court clarifies that the involvement of non-Dutch persons does not necessarily stand in the way of such a collective action.

This means that – provided there are some affected Dutch citizens in the claim – anyone in Europe (and possibly even outside Europe) can be part of a class action through the Dutch courts. It is also possible – though yet to be tested – that Belgian courts would also agree to consider complaints by non-Belgian claimants.

This right is – relatively speaking – still in its infancy, but it provides a very strong basis to move class actions forward by several leagues. The law is, however, quite strict in terms of the nature of any organisation that brings such a claim. That is why a specialist non-profit foundation (a “Stitchting”) must be created. That is precisely what we intend to achieve over the coming two months.

The potential scale of this action cannot easily be overstated. Every day – somewhere in Europe – a data protection regulator, a national court, a surveillance tribunal or a police authority makes an adverse decision regarding intrusion. And all those decisions – where they affect people across Europe and the world – can be used as the basis for a class action. Now that organisations overwhelmingly reach a global customer base, the potential for mass action is greater now than ever.

The new foundation will have several core aims, including:

  • Promoting the concept of class actions;

  • Identifying potential opportunities for litigation;

  • Working with civil society to identify claimants;

  • Bringing actions before Dutch courts on behalf of all EU persons and potentially claimants worldwide;

  • Facilitating actions in non-Dutch countries in order to test national law

Working with civil society will be crucial. A strong network of NGO’s operating in many jurisdictions and disciplines will magnify the chances of success for all actions.

I will report back on these pages when the details of the foundation – and that of its directors and advisers – have been agreed. In the meantime, readers who are interested in this project are welcome to contact us.