Third Circuit Lets Google Give Cookies to Kids

Rarely does whether a child has a cookie rise to the level of a federal question.  However, on June 27, 2016, in In re Nickelodeon Consumer Privacy Litigation, No. 15-1441, a panel of the Third Circuit Court of Appeals substantially affirmed the dismissal of a multi-district, class-action lawsuit against Viacom and Google alleging that the defendants unlawfully used internet site-tracking cookies to target advertisements at children who watched videos and played games at Nickelodeon’s website.  This decision substantially relied on a November 2015 decision from the same court, finding Google not liable under federal privacy laws for bypassing cookie-blockers on Apple’s Safari and Microsoft’s Internet Explorer web browsers.  The Nickelodeon Court did permit plaintiffs’ claim against Viacom for invasion of privacy under New Jersey law to proceed. The plaintiff class—children under the age of 13—alleged that Viacom and Google tracked their web-browsing and video-watching habits by installing cookies on their computers through Viacom websites like Nick.com, and shared this information with Google.  Plaintiffs also alleged that Google used the cookies it installed to track users across any website on which Google displays ads.  Plaintiffs alleged that Viacom’s and Google’s conduct violated federal laws such as the Wiretap Act, the Stored Communications Act, and the Video Privacy Protection Act (VPPA), and also brought state statutory and common law claims. After finding that the plaintiffs had standing, the Court dismissed plaintiffs’ Wiretap Act, Stored Communications Act, and state statutory claims based on the Court’s previous Google decision.  The Court also dismissed plaintiff’s claim for violation of the VPPA, holding the VPPA: (i) only prohibits the disclosure, not the receipt, of personally identifying information relating to viewers’ consumption of video-related services; and (ii) only prohibits the disclosure of information that would allow an ordinary person to identify a specific individual’s video-watching behavior, not disclosures of IP addresses, as occurred in Nickelodeon.  The Court revived one count against Viacom and remanded the case to the district court, finding that a reasonable jury could find Viacom liable for invasion of privacy, based on Viacom’s representation on Nick.com that it did not collect or share any personal information about its visitors. For more information on internet privacy law or the implications of In re Nickelodeon, please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group at keinhorn@genovaburns.com, or Jennifer Borek, Esq., a Partner in the Complex Commercial Litigation Group at jborek@genovaburns.com.