A law enacted in 1634 is the reason Europeans are unable to collectively sue Big Tech companies.

      Five years ago, Europe granted the right to initiate class actions against large corporations. Most major tech firms have their European headquarters in Ireland, yet campaigners there have only succeeded in launching one class action. The reason lies in a law from 1634.

      Ellen O’Regan detailed the issue for Politico from Dublin. Current Irish law prohibits individuals from financing a lawsuit unless they are directly involved or possess a legitimate interest in the case.

      Two outdated legal terms still apply: maintenance and champerty. Maintenance refers to funding someone else’s lawsuit without any personal stake, while champerty involves the funder receiving a portion of the winnings. Ireland adopted both concepts from English law and enacted them into statute in 1634. England abolished these offences in 1967, but Irish courts continue to enforce them.

      Ireland stands as the only EU member state with such restrictions. Moreover, Irish courts are responsible for significant rulings, including a recent directive for the data regulator to reevaluate a proposed TikTok ban regarding data transfers from China.

      According to the EU’s Representative Actions Directive, established in 2020, consumers throughout the union can pursue collective legal actions. This initiative was prompted by the Dieselgate scandal, where Volkswagen settled with American consumers for over $9.5 billion, leaving Europeans without a similar avenue.

      However, the directive limits the entities allowed to file such actions, permitting only qualified non-profit organizations to initiate representative cases. Unfortunately, non-profits often lack the financial resources to sue corporations like Meta or Google independently. They depend on external funding sources, which is prohibited under Irish law.

      Johnny Ryan, head of the enforcement unit at the Irish Council for Civil Liberties, describes this situation as a "fatal contradiction."

      In the past five years, five non-profits have registered in Ireland to pursue these actions, with three having experience in confronting large tech companies: the Irish Council for Civil Liberties, Noyb, and Digital Rights Ireland. The council has filed the only case to date, against Microsoft regarding its online advertising system, financed through its general budget with donations and philanthropic grants.

      Ryan elaborated, "Taking on complex litigation like this in Ireland costs at least €1 million upfront. We cannot manage multiple cases unless the State permits us to raise the necessary funds."

      This issue extends beyond Ireland. Since all major tech companies—Meta, Google, Microsoft, TikTok, and Apple—operate their European bases in Dublin, the Irish regulator handles a considerable amount of enforcement within the EU.

      Gerard Rudden, the Irish attorney who assisted Max Schrems with two significant cases against Facebook in the Irish courts, stated the implications clearly. "If funding were allowed, a European-wide collective redress case against Meta, Google, Microsoft, or others could be initiated in Ireland. But currently, it’s just not feasible due to excessive costs." He added that these corporations have limitless resources for litigation.

      Regulatory bodies can impose fines, but consumers receive no direct compensation from these penalties. For instance, a Dutch authority recently fined Uber €825 million due to automated driver suspensions, and the EU Commission has charged TikTok under the Digital Services Act. However, the fines go to the government, not to the affected consumers.

      Companies also contest these regulations; for example, Google, Meta, Spotify, and Sony are challenging a Belgian law on creator compensation in EU courts.

      Collective redress is the means through which compensation flows to consumers, yet, in the only jurisdiction where these companies are located, funding is not permitted.

      The American approach contrasts sharply. Recently, a Twitch streamer filed a class action lawsuit against Twitch and Amazon regarding the use of livestreams for training generative AI, without requiring a non-profit or external funding. Meanwhile, Meta is currently defending itself in Oakland against claims from four U.S. states seeking penalties estimated by the company itself to be around $1.4 trillion.

      Ireland's Law Reform Commission is expected to issue a report later this year assessing whether current regulations should be modified. Following that, any changes would fall under the jurisdiction of the justice department. The justice minister has already expressed hesitancy toward third-party funding, warning about the potential commodification of justice and the risk of lawyers or funders taking a substantial part of any payouts.

      While this concern is not without merit—critics of the American legal system raise similar arguments regarding the number of lawsuits driven by its funding model—Ireland has proposed its own solutions.

      When incorporating the directive into national law, Ireland set a €25 fee for consumers wishing to join a class action, claiming this aligns with the requirement for fees to remain low enough to encourage participation. In the near future, the government plans to begin waiving High Court fees for qualified non-profits pursuing these actions, though these fees are only a few hundred euros.

      However, against Ryan's estimate of at least €1 million needed for litigation, waiving filing fees does little to rectify the funding conundrum.

      Brussels has taken