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Google Inc. and Viacom Inc. moved to dismiss a class action lawsuit over Nickelodeon website privacy concerns, arguing the minors had consented to the placement of cookies to track their web habits and that tracking had not caused any damages. The plaintiffs shot back with a response, arguing minors cannot legally consent to the placement of cookies and the statutes the plaintiffs allege Google and Viacom violated do not require monetary damages for their claim to be awarded.
Google and Viacom had been hit with six class action lawsuits alleging the companies illegally tracked the online activities of minor children. The cases were later consolidated into multidistrict litigation in New Jersey. Google and Viacom moved to dismiss the complaints in January of this year. On March 3, the plaintiffs, including parents and their minor children, filed an opposition to the motion.
In their opposition motion, the plaintiffs first argue that, under the Children’s Online Privacy Protection Act, children are incapable of giving consent, stating “minor children did not, and cannot consent to the monitoring of their communications and viewing histories.”
Plaintiffs also argue that their Nickelodeon privacy class action lawsuit is not a “broadside attack on the use of cookies,” pointing out that “not all cookies are created equal.” They explain, “[t]hough first-party cookies may indeed be essential for how the Internet functions, third-party cookies are not essential for persons using the Internet.”
“Instead,” the plaintiffs continue, “third-party cookies are used in furtherance of data collection, behavioral profiling, and targeted advertising,” and, “[t]hird party cookies would certainly be permissible if their existence and use was conspicuously disclosed and agreed to by those capable of consent.” However, the plaintiffs argue “that is not the case here,” and, “[t]hough Defendants would need to seek alternative means of generating revenue when it comes to minor children, the Internet would continue to function just fine without such tracking technologies forced upon children.”
The plaintiffs also argue that evidence of monetary damage is not required to establish a claim under the statutes they allege Google and Viacom violated, pointing out “[i]njury-in-fact does not require ‘actual monetary damages,’ because the actual or threatened injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” The plaintiffs state, “[h]ere, Plaintiffs pled statutory standing through an invasion of their conferred and codified rights under: (1) the Video Privacy Protection Act; (2) the Electronic Communications Privacy Act; (3) the Stored Communications Act; (4) the California Invasion of Privacy Act; and (5) the New Jersey Computer Related Offenses Act.”
“The right to privacy is ‘a most fundamental human right’ and where threatened by ‘industrial espionage … the state interest in denying profit to such illegal ventures is unchallengeable,’” the plaintiffs argue. Therefore, “[i]rrespective of economic loss, Plaintiffs suffered concrete injury the instant Defendants placed certain tracking cookies and began to monitor and record evidence of the Plaintiffs’ communications on the Internet without their knowledge or consent.”
The plaintiffs are represented by Barry R. Eichen and Evan J. Rosenberg of Eichen Crutchlow Zaslow & McElroy LLP and James P. Frickleton, Mary D. Winter, and Edward D. Robertson III of Bartimus Frickleton Robertson & Goza PC.
The Viacom/Google Internet Tracking MDL is In re: Nickelodeon Consumer Privacy Litigation, MDL No. 2443, in the U.S. District Court for the District of New Jersey.
UPDATE: A federal judge dismissed the Nickelodeon Consumer Privacy MDL on July 2, 2014, ruling the plaintiffs failed to prove that Google and Viacom violated state and federal privacy and wiretapping laws.
UPDATE 2: On Nov. 22, 2016, Viacom argued in New Jersey federal court that the last privacy claim in a class action lawsuit alleging Nickelodeon tracked the online activity of minor users should be dropped.
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2 thoughts onMinors Oppose Motion to Dismiss in Nickelodeon Tracking MDL
UPDATE 2: On Nov. 22, 2016, Viacom argued in New Jersey federal court that the last privacy claim in a class action lawsuit alleging Nickelodeon tracked the online activity of minor users should be dropped.
UPDATE: A federal judge dismissed the Nickelodeon Consumer Privacy MDL on July 2, 2014, ruling the plaintiffs failed to prove that Google and Viacom violated state and federal privacy and wiretapping laws.