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Media Alerts - In Re: Nickelodeon Consumer Privacy Litigation - Third Circuit
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August 2, 2016
  In Re: Nickelodeon Consumer Privacy Litigation - Third Circuit
Headline: Class of children has claim of intrusion upon seclusion against Viacom and Google but dismissal of other wiretap and computer claims is upheld.

Area of Law: Cyber Law

Issue(s) Presented: Did the District Court err dismissing a class action suit against Viacom and Google under the Federal Wiretap Act, the California Invasion of Privacy Act, the Federal Stored Communications Act, the New Jersey Computer Related Offenses Act, the Video Privacy Protection Act, and Intrusion upon Seclusion?

Brief Summary:

In this multidistrict class action claim, children younger than 13 alleged that defendants, Viacom and Google, unlawfully collected their personal information on the Internet. Viacom owns the Children's television station Nickelodeon and also operates Nick.com, a website geared towards children that offers streaming videos and interactive games. The plaintiffs alleged that Viacom and Google unlawfully used cookies to track children's web browsing and video watching habits on Viacom's websites, with the purpose of selling targeted advertising based on users' web browsing.

The Third Circuit affirmed dismissal of most of the plaintiffs' claims, but vacated dismissal of the claim for intrusion upon seclusion against Viacom. Plaintiffs' wiretapping claim failed because, under the court's previous holding in Google, companies that place cookies on a computing device are parties to any communications that they acquire. Like the federal wiretapping statute, the California Invasion of Privacy Act does not apply where the alleged interceptor was a party to the communications. The Federal Stored Communications Act claim fails because, under Google, personal computing devices are not protected. The New Jersey Computer Related Offenses Act claim fails because the plaintiffs did not allege the kind of injury that the statute requires, which is damage to business or property. The Video Privacy Protection Act claim fails because the Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information. However, the Court held that in regards to Viacom, the plaintiffs adequately alleged a claim for intrusion upon seclusion. The plaintiffs successfully alleged an intentional intrusion, an invasion of their privacy by Viacom, and that the intrusion on their privacy was highly offensive to the ordinary reasonable person.

Extended Summary:

In this multidistrict consolidated class action, plaintiffs were children younger than 13 who alleged that the defendants, Viacom and Google, unlawfully collected personal information about them on the Internet, such as what webpages they visited and what videos they watched on Viacom's websites. Viacom owns the Children's television station Nickelodeon and also operates Nick.com, a website geared towards children that offers streaming videos and interactive games. When a child registers to use Nick.com, the child provides his or her birthday and gender to Viacom and chooses a username and password. However, the plaintiffs asserted that Viacom's registration form included a message stating: "Hey grown-ups: We don't collect any personal information about your kids. Which means we couldn't share it even if we wanted to."

The plaintiffs alleged that Viacom and Google unlawfully used cookies to track children's web browsing and video watching habits on Viacom's websites. They claimed that the defendants collected information about children through: Viacom placing its own first-party cookie on the computers of persons who visit its websites; Google placing third-party cookies on the computers of persons who visit Viacom's websites; and Viacom providing Google with access to the profile and other information contained within Viacom's first-party cookies. In the aggregate, the plaintiffs claimed that Viacom disclosed to Google, and Google collected and tracked children's usernames, genders, birthdates, IP addresses, browser settings, unique device identifiers, operating systems, screen resolution, browser versions, and web communications. The plaintiffs alleged that the purpose of gathering this information was to sell targeted advertising based on users' web browsing. Plaintiffs raised six claims of violations of the Wiretap Act, the Stored Communications Act, the California Invasion of Privacy Act, the Video Privacy Protection Act, the New Jersey Computer Related Offenses Act, and a claim under New Jersey common law for intrusion upon seclusion. The District Court dismissed all of the plaintiffs' claims.

A previous Third Circuit opinion, In re Google Inc. Cookie Placement Consumer Litigation, addressed various of the plaintiff's claims. The Wiretap Act does not make it unlawful for a person to intercept electronic communication if the person is a party to the communication. The District Court determined that Google was a party to all communications with the plaintiffs' computers or was permitted to communicate with the plaintiffs' computes by Viacom, which was itself a party to all such communications. The Third Circuit affirmed the District Court's dismissal of plaintiffs' federal Wiretap Act claim, concluding that under Google, companies that place cookies on a computing device are parties to any communications that they acquire.

The Third Circuit also affirmed the District Court's dismissal of plaintiffs' California Invasion of Privacy Act. This act prohibits the interception of wire communications and disclosure of the contents of such intercepted communications. The Court concluded that, as with the federal wiretapping statute, under Google the California act does not apply where the alleged interceptor was a party to the communications. The Third Circuit also affirmed the District Court's dismissal of the Federal Stored Communications Act, holding that, under Google, that Act does not protect personal computing devices. The Third Circuit also affirmed dismissal of claims under the New Jersey Computer Related Offenses Act because the plaintiffs failed to allege damage to business or property as required.

The Third Circuit also upheld dismissal of the claim under the Video Privacy Protection Act, which prohibits the disclosure of personally identifying information relating to viewers' consumption of video-related services. The Court held that the Video Privacy Protection Act permits plaintiffs to sue only a person who discloses such information, not a person who receives such information; and that the Act's prohibition on the disclosure of personally identifiable information applies only to the kind of information that would readily permit an ordinary person to identify a specific individual's video-watching behavior. The Court concluded that the kind of disclosures at issue in the case, involving digital identifiers like IP addresses, fell outside the Act's protections.

The Third Circuit held that in regards to Viacom, the plaintiffs adequately alleged a claim for intrusion upon seclusion. The plaintiffs claimed that Viacom and Google invaded their privacy by committing the tort of intrusion upon seclusion. They alleged that Viacom explicitly promised not to collect any personal information about children who browsed its websites and then proceeded to do exactly that. The Court found that the plaintiffs successfully alleged an intentional intrusion, an invasion of their privacy by the defendant, and that the intrusion on their privacy was highly offensive to the ordinary reasonable person. These allegations were supported by the fact that Viacom tracked their online behavior without their explicit permission to do so and Viacom's promise to not collect any personal information created an expectation of privacy. In addition, the Court held that the Children's Online Privacy Protection Act, a federal statute that empowers the Federal Trade Commission to regulate websites that target children, does not preempt the plaintiffs' state-law privacy claim.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151441p.pdf


Panel: Fuentes, Shwartz, and Van Antwerpen, Circuit Judges

Argument Date: December 8, 2015

Date of Issued Opinion: June 27, 2016

Docket Number: No. 15-1441

Decided: Vacated in part, affirmed in part

Case Alert Author: Cynthia C. Pereira

Counsel: Jason O. Barnes, Douglas A. Campbell, Frederick D. Rapone, Barry R. Eichen, Evan J. Rosenberg, James P. Frickleton, Edward D. Robertson III, Edward D. Robertson, Jr., Mary D. Winter, Mark C. Goldenberg, Thomas Rosenfeld, Adam Q. Voyles, Counsel for Appellants; Alan J. Butler, Marc Rotenberg, Counsel for Amicus Curiae Electronic Privacy Information Center; Jeremy Feigelson, David A. O'Neil, Seth J. Lapidow, Stephen M. Orlofsky, Counsel for Appellee Viacom, Inc.; Colleen Bal, Michael H. Rubin, Tonia O. Klausner, Jeffrey J. Greenbaum, Joshua N. Howley, Counsel for Appellee Google, Inc.; Jeffrey B. Wall, Counsel for Amicus Curiae Chamber of Commerce of the United States of America.

Author of Opinion: Circuit Judge Fuentes

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/02/2016 09:20 AM     3rd Circuit  

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