The first of two articles about the same case discussed below, was posted here on September 12, 2019. This is the second article on the subject of the invasion of privacy Multi-District Litigation against Facebook pending in the Northern District of California at this time.
In what appears to be a direct rebuke of one of the Roberts Court's decisions, a Federal District Judge ruled that a class of plaintiffs can sue a company for invasion of privacy because invasion of privacy is both "concrete" and "particularized" enough to sustain a claim. This ruling came despite the District Judge's recognition that the claims alleged against Facebook in this federal lawsuit involve "an intangible privacy injury[.]" In re: Facebook, Inc., Consumer Privacy User Profile Litig., ___ F. Supp. 3d ___, MDL No. 2843, No. 18-md-02843-VC, 2019 WL 4261048, at *9 (N.D. Cal. September 9, 2019) (Chhabria, USDJ).
"This lawsuit, which stems from the Cambridge Analytica scandal, is about Facebook's practice of sharing its users' personal information with third parties." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *1.
It will be useful to recall the specific allegations in the operative complaint. Although they were detailed in the first article posted here about this case, for readers' convenience and at risk of seeming repetitive, the specific allegations against Facebook in this case will be repeated in the present article. The plaintiffs alleged four categories of actionable conduct:
The plaintiffs allege that Facebook violated their privacy rights (and other rights) because: (i) they engaged in sensitive communications that included photographs, videos they made, videos they watched, Facebook posts, likes, and private one-on-one messages; (ii) they intended to share these communications only with a particular person or a group of people; (iii) Facebook made those communications widely available to third parties in a variety of ways; and (iv) as a result, third parties were able to develop detailed dossiers on the plaintiffs including information about their locations, their religious and political preferences, their video-watching habits, and other sensitive matters.
In re Facebook Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *9.
In the face of these allegations, Facebook filed a motion to dismiss based on several grounds, one of which we will address in the present article. Facebook advocated that the invasion of privacy lawsuit against it should be dismissed by this federal court because, Facebook argued, "that even if its users had a privacy interest in the information they made available only to friends, there is no standing to sue in federal court because there were no tangible negative consequences from the dissemination of this information."
In this case, the District Court denied Facebook's motion to dismiss and rejected Facebook's standing argument in particular: "That too is wrong." The Federal District Judge explained that "the law has long recognized that a privacy invasion is itself the kind of injury that can be redressed in federal court, even if the invasion does not lead to some secondary economic injury like identity theft." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *1.
The ruling in this case began with the U.S. Supreme Court's standing requirements, which have come to be known as the Spokeo "injury in fact" requirement. Simply put, the Spokeo decision found a requirement in the U.S. Constitution that a plaintiff in a lawsuit in federal court must allege an actual or concrete injury in order to have a constitutionally required "case or controversy" that a federal court can adjudicate.
The ruling began by pronouncing Spokeo to be "black-letter law[.]" After bowing to the supremacy of the Supreme Court, the District Court proceeded to quote the Supreme Court's Spokeo decision to reject the argument in this particular case that an injury must not only be "concrete" and "particularized," but the alleged injury must always be "tangible," too:
But it’s black-letter law that an injury need not be “tangible” to be cognizable in federal court. Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1549, 194 L.Ed.2d 635 (2016) (“Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.”). And courts have often held that this particular type of intangible injury – disclosure of sensitive private information, even without further consequence – gives rise to Article III standing.
In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *8.
After establishing that at least some so-called intangible injuries can constitutionally be redressed in federal courts, the District Court addressed the twin Spokeo requirements that the alleged injuries be both "concrete" and "particularized."
The injury alleged in this case "is 'concrete' largely for the reasons already discussed," namely, if you use a company's social media platform to share your sensitive information only with your friends, "then you suffer a concrete injury when the company disseminates that information widely."
The alleged injury was "particularized, at least for some of the plaintiffs," because it was allegedly suffered "directly by the individual plaintiff" and was different from the generalized injury "that members of the public at large might have to a defendant's unlawful conduct." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *9.
"Accordingly, for all the claims addressed by this ruling, Facebook cannot obtain dismissal for lack of Article III standing." In re: Facebook, Inc., Consumer Privacy User Profile Litigation, 2019 WL 4261048, at *10.
Whether and for how long this ruling will survive scrutiny by the Spokeo Court, remains to be seen. For now, this wise ruling is the law that governs at least one company.
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