Viacom/Google Internet Tracking Class Action Lawsuit Dismissed

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Google Inc. and Viacom Inc. have escaped litigation accusing the companies of illegally tracking minors’ Internet activity after a New Jersey federal judge ruled the plaintiffs had not proved the companies had violated privacy and wiretapping laws.

Parents sued Google and Viacom in January of 2013, accusing them in multiple class action lawsuits of violating federal and state laws by installing “cookies” on users’ computers, including for minors who indicated they were under 13 years old during sign-up processes on Nickelodeon websites. The cookies tracked the Internet and video-viewing activities of the minors for the purpose of targeting advertisements to the children.

Last summer, the U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated six Google/Viacom privacy class action lawsuits into an MDL in New Jersey and assigned it to Chesler.

In March, Google and Viacom filed the motion to dismiss the multidistrict litigation, 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 countered, arguing minors cannot legally consent to the placement of cookies and the statutes the plaintiffs alleged Google and Viacom violated do not require monetary damages for their claim to be awarded.

On July 2, U.S. District Judge Stanley Chesler sided with the defendants and dismissed the plaintiffs’ claims that Viacom and Google secretly tracked the Internet activities of children under 13, violating various federal statutes including the Video Privacy Protection Act, the Wiretap Act, the Stored Communications Act, the California Invasion of Privacy Act and New Jersey’s Computer Related Offenses Act.

Judge Chesler dismissed the VIPPA claim, and the Wiretap Act, SCA and CIPA claims with prejudice. Regarding this ruling, the judge noted that the VPPA applies to video tape service providers and the plaintiffs would be unable to overcome the court’s findings that Google is not a video tape service provider under the VPPA.

The judge also noted that the plaintiffs had not established that Google and Viacom had not intercepted the “contents” of communications as defined by the wiretapping statutes.

Regarding the unjust enrichment claims, the judge said “[i]t simply is not reasonable for a consumer — regardless of age — to use the Internet without charge and expect compensation because a provider of online services has monetized that usage.”

Although the judge dismissed several  of the plaintiff’s claims with prejudice, he allowed the plaintiffs to re-plead the VPPA claim against Viacom and the intrusion upon seclusion claim and their New Jersey Computer Related Offenses Act claims.

Judge Chesler ruled that the VPPA could be applied to Viacom; however, he found other grounds to dismiss the VPPA claims against Viacom. The judge explained that the information collected by Viacom could not be used to directly identify a user, “[c]ertainly, this type of information might one day serve as the basis of personal identification after some effort on the part of the recipient,” wrote the judge, “but the same could be said for nearly any type of personal information.”

The judge also found that the plaintiffs’ claims based on state and federal wiretapping statutes that prohibit minors from providing consent did not apply because the data transmitted were “static descriptions more akin to identification and address information” rather than the “contents” of an electronic communications.

The plaintiffs will have 45 days to file an amended master consolidated class action lawsuit.

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: 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.