BGH opens door to class action lawsuit against Meta client Freshfields

In particular, it was about a data breach on Facebook that affected 553 million people worldwide and 6 million people in Germany. In 2018 and 2019, the perpetrators were able to assign non-public cell phone numbers to Facebook users using scraping. They published these data lists on the Internet. In the case that is now being heard before the Federal Court of Justice, an affected consumer sued for damages and was proved correct.

For the judges of Karlsruhe, the loss of control over your own data represented damage within the meaning of the General Data Protection Regulation There is no need for economic damage (ref. VI ZR 10/24). The BGH did not specify a specific amount for damages. However, the Senate believes that 100 euros is appropriate if there is only a loss of control.

If it continues like that, the situation that companies have been afraid of for years would have happened: If it is no longer necessary to prove specific damages in terms of data protection incidents, but the fact is that the impact is enough there to promote claims for damages – then even small individual claims can have millions of customers Amounts cause painful costs for affected companies. If ​​every user affected in the current case received 100 euros, that would be 55 billion euros for Meta. Just based on the 6 million people affected in Germany: still 600 million euros.

This is still a theory, and not every data protection incident affects so many people. Nevertheless, the regulation increases the pressure: it shows that cases of dredging, which happen again and again in other places, are a great economic risk for companies. On the other hand, there are good opportunities for law firms and other service providers that collect and process claims on a large scale.

The Higher Regional Court of Cologne has to decide again

With the decision, the BGH sent the case back to the Higher Regional Court of Cologne. A year ago, the court decided that the loss of direct control was not enough to take undue damages (ref. 15 U 67/23). In the first instance, the Regional Court of Bonn partially upheld the lawsuit and awarded the plaintiff damages of 250 euros (see 13 O 125/22). Now the Higher Regional Court of Cologne has to deal with the case again and make a decision.

The first judgment in the main decision procedure

In the process, the BGH used the new decision-making procedure that was introduced at the end of October for the first time. In major proceedings, Karlsruhe can assign a case and clarify the disputed legal issues. Unlike the diesel scandal, for example, the courts are protected from a flood of individual lawsuits.

In the scrapping event, thousands of those affected in Germany have come together to form a class action lawsuit. Meta rejects claims in this complex because the assessment of the Federal Court of Justice on liability and damages is not compatible with the latest case law of the European Court of Justice.

Plaintiff’s representative
Legal WBS (Köln): Christian Solmecke (IT law), Jeremy Gartner; Partner: Moritz Gielen (both data protection law)
Thomas Kofler (Karlsruhe; BGH representation)

Meta Producer
new areas (Frankfurt): Dr. Martin Mekat, Dr. Christoph Werkmeister (data protection law; Düsseldorf); Participants: Severin Kehrer, Dr. Alice Möller-Roth, Stephan Hofer (both Munich), Dr. Sarah Hillebrand (Düsseldorf), Dr. Dawid Ligocki (Berlin), Alexander Malek, Dr. Katharina Knoche (all lawsuits)
Prof. Dr. Christian Rohnke (Karlsruhe; BGH representation)

Federal Court of Justice, VI. Civil Assembly
Stephan Seiters (presiding judge)

Background Information: Freshfields has represented Meta and its affiliated companies in almost all civil cases with end users in Germany since 2021. Parts of the mandate will be handled through the company’s Mass Claims Unit, which was established in 2022, where lawyers do major legal work outside of the company’s normal hierarchy. Freshfields also advised Meta on updating the terms of use after the Federal Court of Justice declared them partially invalid in 2021. A team led by Freshfields partner Mekat also advised internet broker Scalable when which found it open to a number of claims for damages following a data protection incident.

Meta works with several leading law firms in Germany. Latham & Watkins, Gleiss Lutz and WilmerHale led the sensational proceedings at the interface of data protection and antitrust law, which recently concluded with an agreement between Meta and the Cartel Office after five years of decisions BGH and ECJ. Gleiss also represents Meta in other proceedings before the Cartel Office. WilmerHale often acts for Meta in disputes with data protection authorities. White & Case is Meta’s leading law firm for civil litigation worldwide, which, according to JUVE information, also handles major litigation with a connection to Germany for the group.

WBS Legal is a law firm specializing in media, copyright and IT law. Thanks to his YouTube channel, Solmecke is one of the most famous German consumer lawyers. In the scrap yard, WBS (formerly Wilde Beuger Solmecke) represents more than 4,000 people, including the plaintiff before the Federal Court of Justice.