A law from 1634 is why Europeans cannot sue Big Tech together

Europe gave itself the right to bring class actions against big companies five years ago. Ireland hosts the European headquarters of most large technology firms, and campaigners there have managed exactly one.

A law from 1634 explains why.

Ellen O’Regan set out the problem for Politico from Dublin. Irish law bars anyone from funding a case unless they take part in it directly or hold a legitimate interest.

Two medieval offences, still on the books

Two offences do the work: maintenance and champerty. Maintenance covers funding someone else’s lawsuit without a stake in it. Champerty describes the version where the funder takes a cut of the winnings.

Ireland inherited both from English law and wrote them into a statute in 1634. England abolished the offences in 1967. Irish courts have kept them.

Ireland is the only country in the European Union with the restriction. Its courts also decide plenty else that matters here, having recently told the data regulator to reconsider a TikTok ban on China data transfers.

The directive says only non-profits can sue

The EU’s Representative Actions Directive, agreed in 2020, lets consumers across the bloc bring collective cases. Dieselgate prompted it. Volkswagen settled with American consumers for more than $9.5bn, and Europeans had no comparable route.

The directive restricts who may file. Only qualified non-profit entities can bring a representative action.

Non-profits do not have the money to sue Meta or Google on their own. They rely on outside funding, which is the thing Ireland prohibits.

Johnny Ryan, who runs the enforcement unit at the Irish Council for Civil Liberties, calls that the “fatal contradiction”.

One case in five years

Five non-profits have registered in Ireland to bring these actions. Three have a record of taking on large technology companies. They are the Irish Council for Civil Liberties, Noyb and Digital Rights Ireland.

The council filed the only case so far, last year, against Microsoft over its online advertising system. It paid for that out of its general budget, funded by donations and philanthropic grants.

“To take complex litigation like this in Ireland costs at least €1 million in the first instance,” Ryan told Politico. “We cannot take multiple cases unless the State allows us to raise the necessary funds.”

Why this is not only an Irish problem

Ireland is where such a case has to start. Meta, Google, Microsoft, TikTok and Apple all run their European operations from Dublin, which is why the Irish regulator handles so much of the bloc’s enforcement.

Gerard Rudden, the Irish lawyer who helped Max Schrems take two landmark cases involving Facebook through the Irish courts, put the consequence directly.

“If funding was permitted, you could have a European-wide collective redress case against Meta, Google, Microsoft or whoever in Ireland,” he told Politico. “But at the moment it’s just impossible because it would cost too much.”

“They obviously have unlimited resources to put into litigation,” Rudden said of the companies.

Regulators can fine. Consumers cannot collect

This is the gap the rule creates, and it is worth being precise about it.

European regulators have plenty of teeth. A Dutch authority fined Uber 825 million euros this month over automated driver suspensions, and the Commission has charged TikTok under the Digital Services Act.

Those penalties go to the state. Not a cent of it reaches the people the regulator says suffered the harm.

Companies fight those rules too. Google, Meta, Spotify and Sony are contesting a Belgian law on paying creators at the EU court.

Collective redress is the mechanism that moves compensation to consumers. In the one jurisdiction where the defendants sit, nobody can fund it.

The contrast is American, and it is stark

A single Twitch streamer sued Twitch and Amazon last week over the use of livestreams to train generative AI, as a class action, without needing a non-profit or a funding regime.

Meta is defending a trial in Oakland right now, where four US states seek penalties the company itself puts at $1.4 trillion.

Europe has the regulators. The United States has the plaintiffs.

Dublin is thinking about it

Ireland’s Law Reform Commission is due to report later this year on whether the rules should change. Any reform would then be a matter for the justice department.

The justice minister has already signalled where he stands. Jim O’Callaghan said he is “very hesitant” about third-party funding, citing the risk of “commodifying justice” and lawyers or backers taking a large share of any payout.

That objection is not frivolous. Critics of the American system make the same argument, blaming the funding model for the sheer volume of suits.

What Ireland is offering instead

When it wrote the directive into national law, Ireland capped at €25 the fee a consumer pays to join a class action. The enterprise department says that meets the requirement for fees to be modest enough not to deter anyone.

In the “coming weeks”, the government expects to start waiving High Court fees for qualified non-profits bringing these cases. Those fees run to a few hundred euros.

Set that against Ryan’s figure of at least €1m to run one case. Waiving the filing fee does not change the arithmetic.

Brussels has noticed

The European Commission told Politico it is in “close contact with all Member States, including Ireland” and is assessing how each one implemented the directive.

It also restated the obligation. Where member states prohibit third-party litigation funding, “they need to ensure that costs of proceedings do not constitute an obstacle for qualified entities to exercise their rights to seek collective action”.

That is the test Ireland now has to meet, and one case in five years is the number a reviewer would start from.

What to watch

The first thing is the Law Reform Commission report, due before the end of the year. It will not change the law by itself, but it is the document any reform would be built on.

The second is whether the Commission moves from assessing to acting. It has infringement powers if it decides Ireland has not properly transposed the directive.

The third is the Microsoft case. It is the only working example of an Irish collective action against a large technology company, and how it goes will tell every other non-profit whether the route is worth attempting on donations alone.