3rd Circuit Largely Gives Viacom, Google Win in Suit Alleging Illegal Data Collection
A three-judge federal panel Monday largely tossed out a class action lawsuit that accused Google and Viacom of illegally collecting personal data of children younger than 13 who watched videos and browsed the Nickelodeon website. The 3-0 decision by the 3rd U.S. Circuit Court of Appeals in Philadelphia -- by Julio Fuentes, Patty Shwartz and Franklin Van Antwerpen -- mostly upheld a January 2015 ruling by District Judge Stanley Chesler of New Jersey. The decision involved claims made under the Video Privacy Protection Act, New Jersey Computer Related Offenses Act and "intrusion upon seclusion."
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Google declined to comment on the decision, but Viacom said it was happy with the outcome. “We are pleased that the Court of Appeals has affirmed the District Court's dismissal of all federal and all but one state law claims against Viacom, and are confident that once the facts of the case are heard we will prevail on the one remaining claim," Viacom said. "Nickelodeon is proud of its record on children’s privacy issues and strongly committed to the best practices in the industry." Attorney Jason Barnes, who represented the class action, didn't comment. The Electronic Privacy Information Center, which filed an amicus brief with the plaintiffs, also didn't comment.
Parents alleged Viacom, which owns Nickelodeon and Nick.com, and Google "unlawfully used cookies to track children's web browsing and video-watching habits on Viacom's websites," according to the decision written by Fuentes. The decision said the plaintiffs said the companies collected information about children in at least four ways: through first-party cookies placed by Viacom on computers to track games played and videos watched; through third-party cookies placed by Google on computers used by kids who visited websites; by Viacom providing access to profile and other data in first-party cookies to Google; and by Google tracking users through Doubleclick.net cookies across any website where the company shows advertisements.
The 3rd Circuit said the Video Privacy Protection Act of 1988 didn't apply to Google because the law permits plaintiffs to sue only those disclosing personally identifiable information, not those receiving it. The law also didn't apply to Viacom because static digital identifiers -- such as IP addresses, browser and operating system settings that comprise a "browser fingerprint," and unique device identifiers -- don't qualify as personal information, the decision said. "We ultimately do not think that the definition of personally identifiable information in the Act is so broad as to cover the kinds of static digital identifiers at issue here."
Judges dismissed a claim made under the New Jersey Computer Related Offenses Act, which makes it illegal to "alter, damage, access or obtain data from a computer without authorization." Plaintiffs said Google and Viacom violated the law by using cookies to access user computers to get personal data without consent. The federal court affirmed the decision by the District Court of New Jersey decision the plaintiffs "failed to allege that they had been 'damaged in business or property,' as the plain text of the New Jersey Act requires."
Another claim against Google and Viacom was that they invaded users' privacy by "committing the tort of intrusion upon seclusion," the decision said. The suit claimed Viacom "explicitly" said it wouldn't collect children's personal data but did just that, said the court. Google was cleared. The 3rd Circuit partially vacated the plaintiffs' claim, saying "the plaintiffs have adequately alleged that Viacom collected personal information about children despite its promise not to do so, and we further believe that a reasonable jury could conclude that Viacom's conduct in breach of its promise was highly offensive under New Jersey law."
The suit started in June 2013 when six-privacy related suits against Viacom and Google were transferred to the District Court of New Jersey for consolidation. Plaintiffs raised six claims, including violations of the Wiretap Act, Stored Communications Act, California Invasion of Privacy Act, Video Privacy Protection Act, New Jersey Computer Related Offenses Act "and a claim under New Jersey common law for intrusion upon seclusion." The District Court granted the companies' motion to dismiss the amended complaint, leading to the appeal that was heard by the 3rd Circuit.