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In re: Nickelodeon Consumer Privacy Litigation

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Court/Judicial body:
United States Court of Appeals for the Third Circuit

3rd U.S. Circuit Court of Appeals, No. 15-1441.

27 June 2016

Instrument(s) cited:
Video Privacy Protection Act (VPPA) – A 1988 federal statute intended to “preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.”
Children’s Online Privacy Protection Act (COPPA) – The statute limits the gathering of personal information from children under the age of 13 on the internet.

Case summary

The plaintiffs in the case are children under the age of 13 who alleged that the defendant companies – Viacom and Google – tracked the web-browsing and video-watching habits of children through “cookies” who visited, in violation of state and federal law, for the purposes of targeted advertisement.

Issue and resolution:
Right to privacy. Whether a number of claims relating to breach of privacy by the tracking of “cookies” of children can be admitted. The Court upheld one claim for intrusion upon seclusion against a company which had promised not to collect personal information.  

Court reasoning:
The claim relied on number of domestic laws protecting privacy online – the federal Video Privacy Protection Act (VPPA), the federal Wiretap Act, the federal Stored Communications Act and the New Jersey Computer Related Offences Act. The Court concluded that tracking the web-browsing and video-watching habits of children who visited was not a violation of these laws and dismissed these argumentsclaim against both companies. In deciding so, the judges followed the reasoning of the In re Google Inc. Cookie Placement Consumer Privacy Litigation case where the court found Google to not be liable under federal privacy laws for bypassing cookie blockers on Apple’s Safari browser and Microsoft’s Internet Explorer browser.

The Court dismissed the claim against Google under the VPPA, concluding that the statute only allowed plaintiffs to sue a person or entity that disclosed Personally Identifiable Information, and not a person or entity who merely received such Personally Identifiable Information. The Court also dismissed the claim against Viacom under the VPPA, concluding that the sort of information disclosed by Viacom was not Personally Identifiable Information within the meaning of the VPPA.

The Court did accept one of the arguments of the plaintiffs concerning the wrongdoing known as ‘intrusion upon seclusion’, which means an interference with private information. The Court dismissed the intrusion of seclusion claim against Google on the grounds that Google, unlike Viacom, had not made any statements which would give rise to an expectation of privacy. Because Viacom had stated that it would not collect any personal information from children visiting, the Court found that Viacom had created an “expectation of privacy” which may have encouraged parents to allow their children to browse the website. As a result, the Court found that a claim for intrusion of seclusion against Viacom may be strong enough and remanded the claim back to the District Court to consider its admissibility.

Link to full judgement:

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

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