When “Free” Isn’t Free: what Meta v Gormsen means for the value of data

What is the value of the data we generate simply by using a social-media platform? The Court of Appeal’s judgment in Meta Platforms Inc and Others v Gormsen [2026] EWCA Civ 993 confirmed that a possible approach to valuing loss in cases where data has been wrongfully appropriated and used is through compensation on the basis of “user damages” and thereby confirmed a potential pathway to bringing data-abuse claims under competition law.

Background

Dr Liza Lovdahl Gormsen is pursuing opt-out collective proceedings on behalf of more than 46 million individuals who have or had a Facebook account. The claim concerns Meta’s alleged collection and monetisation of “Off-Facebook Data”: information about users’ activity away from Facebook, including activity on other Meta services and third-party websites and apps.

The claim alleges that Meta used its dominant position to impose terms on a “take-it-or-leave-it” basis. Users could access Facebook only if they agreed to terms allowing Meta to collect and use their data. According to the class representative, that arrangement involved an unfair exchange: users supplied valuable data but received no corresponding compensation or other value transfer.

The alleged abuse is framed in two related ways. Meta is said to have demanded an unfairly high price from users – in the form of access to user data – for access to Facebook. Alternatively, Meta allegedly paid an unfairly low price for acquiring users’ data by providing access to the platform without adequately compensating users. 

User damages are a way of compensating a claimant by reference to the value of a right or benefit that the defendant has used without paying for it, rather than solely by reference to the claimant’s conventional financial loss. In this case, the class representative argues that, absent Meta’s alleged abuse, Facebook would have been required not to impose unfair terms and instead to negotiate a fair bargain with users—potentially resulting in a monetary payment for permission to collect and use their Off-Facebook Data. Meta’s position is that it would never have made a monetary payment at all. The class representative applied to amend its pleading that, even if Meta would never have engaged in individualised negotiations in the counterfactual, that does not matter as the relevant counterfactual is of a hypothetical negotiation. Meta therefore wrongfully interfered with the users’ right to control their off-Facebook data and should be compensated for the loss of the value of that right, which is known as user damages.

The decision

The issue before the Court of Appeal was accordingly a relatively narrow but important one: whether the claim could be amended to seek user damages under section 18 of the Competition Act 1998.

Meta argued that user damages are confined to a limited category of cases involving traditional proprietary rights. The Court of Appeal rejected that as an established legal rule. Reviewing judgments including the Supreme Court judgments in One Step v Morris-Garner and Lloyd v Google, the Court concluded that the law on user damages is capable of evolution and may apply to the wrongful appropriation and use of data and that, in the wording of the Supreme Court, the law should not be “prissy” about awarding compensation based on the commercial value of the exercise of a right.

Importantly, the Court held that section 18 of the Competition Act 1998 is sufficiently broad to encompass the misuse of property-related interests in an abuse of dominance case noting that “[w]ere it otherwise the statutory prohibition on abuse of a dominant position would risk being severely undermined in its ability to apply in this new and vastly important world where data is rapidly becoming a proxy for money.”.

The Court therefore dismissed Meta’s appeal.

Practical impact

While the Court of Appeal has found that the class representative may in principle argue user damages, the Competition Appeal Tribunal will still need to consider whether the claim’s theory of harm and approach to damages is successful on the merits and permits user damages to be recovered in these circumstances.

The wider significance of the Court’s judgment is nevertheless clear: If a dominant undertaking wrongfully obtains and commercially exploits a valuable user input, competition law may need to provide an effective remedy even where conventional loss is difficult to quantify. It also demonstrates the potential relevance of data-related interests to both the assessment of abuse and the calculation of loss.