The Netherlands

On behalf of the team

On 29 December 2021, the Amsterdam District Court rendered judgment in the case of The Privacy Collective (hereinafter: TPC) v. Oracle and
Salesforce.[1] TPC asserts that Oracle and Salesforce collect the personal data of Internet users and sell this information to third parties to enable them to offer personalised ads, among other things. In addition, TPC asserts that Oracle violated the privacy of Dutch Internet users in a data breach. TPC is therefore seeking, among other things, damages in this class action suit. Rather than address the substance of the case in this judgment, the District Court assessed the admissibility of TPC’s claim.

All admissibility requirements of Article 3:305a DCC must be satisfied before a class action can be declared admissible. One of these requirements that the law imposes is the representativeness requirement. The requirement of representativeness prevents a foundation or association from instituting legal proceedings without the backing of a support base. It is up to the foundation or association to factually substantiate how many injured parties actually support the action in question and, accordingly, the scope of the claim it is representing. The court held that TPC had failed to do so. TPC acquired its support base by means of a system of “likes”; visitors to TPC’s website could express their support by clicking on a “like” button. The District Court held this to be insufficient for purposes of the representativeness requirement, in part because insufficient information was provided on the “like” page and no registration was kept of the data of the “likers”. The fact that TPC enjoys the support of privacy organisations does not automatically imply that it is sufficiently representative. TPC’s claim was declared inadmissible. TPC has since lodged an appeal.[2]

[1]Amsterdam District Court 29 December 2021, ECLI:NL:RBAMS:2021:7647
[2] On 28 April 2022, the CJEU handed down its judgement in the case of Meta Platforms Ireland (C-319/20). The judgment shows that collective actions ‘undoubtedly’ contribute to strengthening the rights of those involved. Therefore, strict (admissibility) requirements should not be imposed on interest groups. We will discuss this judgement in Q2022-2.