Viacom Tries to Trim Last Privacy Claim in Kids Tracking Class Action

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Viacom Inc. 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.

In its reply supporting a motion to dismiss the class action, Viacom said that its privacy agreement doesn’t cover information about its consumers that can’t be used to identify them.

The proposed Class of parents and children had alleged Viacom included a statement on its registration page for Nickelodeon that said “HEY GROWN-UPS: We don’t collect ANY personal information about your kids. Which means we couldn’t share it even if we wanted to!” The Class argued that Viacom deceived parents about its privacy promises with this statement.

However, Viacom claims that this statement only applied to “traditional, real-world identifying details” like a child’s name, physical address and financial account information. Further, Viacom said the statement would not apply to the “anonymous” information such as user names, gender, birth date, unique browser cookie identifier, browser settings and geolocation information. In fact, Viacom contends that they told users they would be collecting this data.

“Accordingly, the promise not to collect ‘personal information’ was not false, and thus was neither ‘highly offensive’ nor intentionally wrongful,” said the company. “The essential elements of the intrusion tort cannot possibly be satisfied.”

Additionally, Viacom argued that the class action plaintiffs’ privacy claims were an “effort to obstruct summary judgment by kicking up clouds of factual dust.” Viacom says the claims only established “irrelevant” information that Viacom gathered cookie identifiers and other facially anonymous data, which Viacom pointed out, that they already admitted to.

“Anonymous information, however, simply was not ‘personal information’ in the context of Nick.com registration,” contends the company. “No amount of rhetoric or mumbo-jumbo masquerading as technical detail can make it so.”

Viacom also argued that the class action plaintiffs did not meet the “highly offensive” requirement under New Jersey law.

“What remains of this case is simply the meaning of the term ‘personal information’ in Viacom’s statements regarding its user data collection practices,” argued Viacom in its supporting memorandum. “Viacom plainly described ‘personal information’ as real-world identifying information, and explained that it did not collect such information. This court can and should accept that explanation based on a straightforward reading of the key documents in the record: the full text of the registration box and the Viacom privacy policy. Such a construction of documents is a classic issue of law for a court.”

A group of parents and their children sued Viacom and Google in 2013 alleging the companies violated their privacy when the Nickelodeon website collected information about their children. The class action plaintiffs alleged that “cookies” were placed on their computers even though their children indicated they were under 13.

The plaintiffs are represented by Barry Eichen and Evan Rosenberg of Eichen Crutchlow Zaslow & McElroy LLP and James Frickleton, Edward Robertson III, Edward Robertson Jr. and Mary Winter of Bartimus Frickleton & Robertson PC.

The Viacom, Google Internet Tracking MDL is In re: Nickelodeon Consumer Privacy Litigation, Case No. 2:12-cv-07829, in the U.S. District Court for the District of New Jersey.