As our readers know, we often discuss the use of third-party pixel tracking software on consumer-facing websites, and the various claims the plaintiffs’ bar has advanced – namely, that the use of third-party pixel tracking software on websites violates federal and state privacy laws. In a recent decision, a Florida federal judge denied class certification and dismissed a pixel tracking lawsuit in which Plaintiffs sought to certify four separate classes of affected consumers. Below, we discuss: (1) the claims asserted in the lawsuit; (2) the decision and the judge’s attendant reasoning; and (3) its implications for e-commerce companies.
Pixel Tracking Case Runs Out of Fuel
According to the Complaint, Plaintiffs alleged that an online veterinary pharmacy employed third-party pixel tracking software on its website (without Plaintiffs’ consent) to track their activities on the website and then shared that information with third parties. Specifically, Plaintiffs alleged that the information Defendant collected and shared revealed what website visitors viewed, selected, added to shopping carts, and purchased. As a result, Plaintiffs asserted that Defendant’s use of third-party pixel tracking software violated federal and state wiretapping laws, including the Federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”). After engaging in class discovery, Plaintiffs moved to certify four separate classes. Defendant opposed class certification and argued, among other things, that Plaintiffs lacked Article III standing. The Court agreed and dismissed the Complaint.
In its decision, the Court likened Plaintiffs’ claims to those of the tort of intrusion upon seclusion. Relying upon Plaintiffs’ own deposition testimony, the Court found that Plaintiffs had no privacy interest in their personal or veterinarian information that they provided to Defendant’s website. As the Court explained in its decision, “no matter how much the named Plaintiffs love their pets and see them as part of their family, that cannot change the undeniable truth revealed during their depositions: neither Plaintiff . . . has any privacy interest (or “seclusion” interest) in their personal information . . . .” Because a bare statutory violation was insufficient to confer Article III standing, the Court denied class certification and dismissed the Complaint.
What Should You Do If You Employ Pixel Tracking Software on Your Website?
Most federal and state laws courts across the country continue to struggle with applying age-old wiretapping laws that were designed to, among other things, alleviate privacy concerns related to law enforcement eavesdropping on private conversations. Until legislation is enacted to curb pixel tracking lawsuits, online businesses should anticipate that these lawsuits will not disappear. Businesses should evaluate their use of third-party pixel tracking technology and associated data collection practices, particularly with respect to how consent to use consumer data is obtained from website visitors.
Hiring the experienced attorneys at Klein Moynihan Turco (“KMT”) can mitigate against the potential exposure companies face for using pixel tracking technology. For years, KMT’s attorneys have been assisting companies with federal and state marketing and privacy law compliance. In addition, the KMT litigation team has successfully defended a litany of businesses in pixel tracking proceedings. If your company employs pixel tracking software or has been served with a pixel tracking demand/lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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Photo by Szabo Viktor on Unsplash
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