Facebook Users Oppose Dismissal of Health Data Privacy Class Action

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A proposed Class of Facebook users are fighting back against the social media giant’s bid to dismiss a class action lawsuit, stating that by capturing and selling the details of users browsing third party health sites, they suffered real economic harm.

On Aug. 1, Facebook and seven cancer institutes, including the American Cancer Society, the American Society of Oncology, Adventist Health System, and the Cleveland Clinic motioned to dismiss the case, arguing that the recent Supreme Court decision on Spokeo lends credence that any harm the companies allegedly caused was not “concrete and particularized” enough for the class action lawsuit.

But Missouri plaintiff Winston Smith and two other anonymous plaintiffs opposed the motion to dismiss on grounds that health privacy is protected under law.

Smith alleges that when he searched for information on lung cancer on the American Cancer Society’s website cancer.org, Facebook captured the information and sold it.

“Plaintiffs are not aware of the total revenue Facebook derives from these lists, but, upon information and belief, avers that per-user revenue for each medical list significantly exceeds the average per-user revenue for non-medical lists,” the lawsuit reads.

The plaintiffs also reference the Spokeo decision, claiming that when Facebook shared their personal medical information to third party health care websites without their consent or knowledge for the purpose of advertising, the invasion of privacy caused them harm.

“Privacy is a fundamental right that finds its highest level of protection in medical information,” the users said, adding that they also “allege a robust market for the sensitive medical information wrongfully disclosed and tracked.”

The proposed class action lawsuit, filed in March, alleges that Facebook’s use of tracking cookies violates patient privacy as it relayed certain private health information from cancer institute websites to increase its advertising profits.

The plaintiffs claim that their private medical information communications with the organizations, including data related to cancer, was given to Facebook without their knowledge.

“In addition, Facebook acquired, tracked, and used the Plaintiffs’ sensitive medical information collected through medical websites and the Facebook website for purposes of direct marketing,” the suit reads. “The disclosures, tracking, and use of their sensitive medical information for direct marketing were all done without Plaintiffs’ knowledge or consent in violation of their privacy rights under federal and state law.”

Facebook specifically did not disclose to its users that it would track, intercept, and acquire user communications, according to the lawsuit. This is also in violation of other websites’ privacy policies.

However, in seeking to toss the case, all eight defendants told U.S. District Judge Edward J. Davila that the plaintiffs’ allegations of harm are “too abstract.”

Again, using the Spokeo decision, the defendants assert that the Facebook users are unsuccessful in showing economic harm because failed to claim they had “lost the opportunity to sell their own browsing history.”

But the website users have a different interpretation of Spokeo. In their argument against dismissal, they contend that under Spokeo, material harm does not have to be tangible but “legally concrete.”

“Post-Spokeo courts have found adequate standing allegations in privacy cases involving rights to privacy in information less substantial than medical communications,” they said.

The plaintiffs are represented by Paul R. Kiesel, Jeffrey A. Koncius and Nicole Ramirez of Kiesel Law LLP, Stephen M. Gorny and Chris Dandurand of The Gorny Law Firm LC and Jay Barnes and Rod Chapel of Barnes & Associates.

The Facebook Health Data Privacy Class Action Lawsuit is Smith, et al. v. Facebook Inc., et al., Case No. 5:16-cv-01282, in the U.S. District Court for the Northern District of California.

UPDATE: On May 9, 2017, a federal judge put an end to a privacy rights class action lawsuit against Facebook and the healthcare institutions behind several informational websites. The judge found that by accepting the Facebook user agreement, the plaintiffs consented to the very data collection that they claimed was unlawful.

UPDATE 2: On Dec. 6, 2018, a three-judge Ninth Circuit panel determined that a lower California court made the right decision to scrap a Facebook class action lawsuit brought forward by users who claimed that the social media company illegally shared data about users’ visits to medical websites.