On 20 August 2020 the High Court imposed an interim injunction on Royal Mail Group (RMG) to restrain an abuse of a dominant position.
The case concerned the provision of remote sexually-transmitted-infection (STI) testing services. Preventx is a leading provider of such services. As part of the services, Preventx relies on RMG to convey the user’s sample from the user to Preventx’s laboratory. For a decade, Preventx has used RMG’s Freepost service for returning samples. One benefit of this is the anonymity of the packaging, which is vital for users of remote STI services. In early 2020, RMG indicated that it would no longer convey the returned samples by Freepost and insisted that Preventx (and users of its services) should use RMG’s Tracked services. Preventx and its customers raised concerns that the tracking function under the RMG Tracked service, together with the risk that the user’s name and address would for the first time appear on the package, risked deterring use of the service due to concerns about confidentiality and privacy in a sensitive area like STI testing.
The main interest in the High Court’s ruling is that it considers that the confidentiality/privacy concerns expressed by Preventx and its customers are prima facie capable of amounting to an “unfair trading condition” under abuse of dominance laws. In this regard, the High Court cited recent German case law involving a social media platform where a reduction in privacy was considered potentially abusive under competition law.
By way of remedy, the High Court imposed an interim injunction on RMG from: (1) refusing to continue to provide its Freepost service to Preventx for returns of STI test samples (for so long as it cannot offer its Tracked returns service on the basis that the returns label need not bear the word “Tracked”); and (2) refusing to process and deliver STI test samples returned to Preventx bearing labels for the Freepost service (without prejudice to RMG’s imposition of an additional charge for such processing and delivery).
The judgment is here.
Robert O’Donoghue QC and David Heaton acted for Preventx, instructed by Gowling LLP.