In our first article Web Tracking and Pixels we discussed Pixel tracking overview, related statutes and regulations and how they can be leveraged against companies. Read more here https://www.bbrown.com/insight/web-tracking-and-pixels/

Over the past several years, a wave of legal action has been filed against organizations that employ web tracking technologies on their platforms. These class action lawsuits differ from typical data breach litigation, focusing on privacy concerns and data access rights rather than security. Many of these suits have arisen because the plaintiffs allege that the data collected is shared without proper notification or consent. The specific technologies under scrutiny in these lawsuits are those similar to and include Meta Pixel tracking, which records and shares certain consumer information regarding their activities on websites. Notable examples and categories of these suits include the following:

Meta Pixel Tracking and Class Actions Against Healthcare Providers

Numerous cases have been filed against healthcare providers who deployed Meta Pixels on their websites. Plaintiffs have had mixed success, as it is difficult to prove the nature of the data shared with Meta. For instance, one case filed in California in 2016 was dismissed because the plaintiffs could not provide evidence that Facebook had gathered protected health information according to HIPAA’s definition. More recently; however, healthcare providers have faced more demanding challenges. In 2019, Massachusetts General Brigham Health settled by paying $18.4 million to their plaintiffs due to allegations of data sharing with Meta.

Oracle and Salesforce Cookie Tracking Class Action

In 2020, Oracle and Salesforce faced class-action lawsuits in the U.K. and the Netherlands over using third-party cookies for ad tracking and targeting. The pending lawsuits argue that mass surveillance of internet users for real-time auctions of marketing data violated the GDPR. The litigants alleged that Oracle and Salesforce breached the GDPR by processing and sharing people’s information via third-party tracking cookies and other advertising technology methods without informed and specific consent. The collective claims were assessed to exceed 10 billion euros.

Meta Pixel Tracking and Class Actions Against Media Companies

In 2022, more than 50 class-action suits were filed against media companies that deployed Meta Pixel on their platforms. These suits alleged that the media companies, including ESPN, Bloomberg, NPR and the NFL, used Meta Pixel Tracking technology, which shared user’s behavioral data back to Meta. These suits are based on alleged violations of the Video Privacy Protection Act (VPPA), which forbids sharing audiovisual media usage data. As of mid-2023, many defendants requested the suits go to arbitration. Some defendants have had success asserting the information shared was aggregated and anonymized, meaning it would be impossible to identify a particular user’s information based on the data shared with Meta.

Meta Pixel-Based Class Actions Against Financial and Tax Services Providers

Several popular tax-filing websites utilized Meta Pixel Tracking to transmit sensitive financial information to Meta, enabling the social media giant to collect visitor data. Major tax preparation services, like H&R Block, TaxAct and TaxSlayer, were alleged to have sent users’ income, filing status, refund amounts and dependents’ college scholarship amounts to Meta through their tracking pixels. Several class actions have been filed and are being carried out in the courts.

Other Web Tracking Technologies

Web tracking technologies are an integral part of the modern digital landscape. They shape how users interact with online content, delivering personalized experiences and providing feedback to service providers. Pixel Tracking is just one of these technologies. From the early days of cookies to the emergence of sophisticated tracking mechanisms like device fingerprinting, the evolution of web tracking has long sparked debates about user privacy and data security.

Cookies

Web Cookies, or HTTP cookies or browser cookies, are small text files stored on a user’s device by websites they visit. They can store user preferences, track browsing behavior and provide personalized experiences. Cookies have been around since the earliest days of the internet and have been indispensable in supporting the functionality of web pages ever since. Although initially designed to facilitate the storage of a user’s site preferences, Cookies rapidly grew popular as a data tracking and advertising tool. In 2009, the European Union introduced the “EU ePrivacy Directive,” which required websites operating within the EU to obtain informed consent from users before storing or accessing cookies on their devices. The concerns echo the trajectory of the EU Cookie Directive and push to regulate Pixel Tracking today.

JavaScript Tracking

JavaScript tracking has been a widespread practice in web development for many years, allowing website owners and third-party advertisers to collect various data about users’ interactions and behavior on websites. JavaScript was introduced in 1995 by Netscape. Initially, JavaScript was primarily used for client-side interactivity, enabling developers to create dynamic and interactive web pages. As the web evolved, developers started leveraging JavaScript for various purposes, including tracking user behavior. Further developments in the early 2000s expanded the capabilities of JavaScript, making it easier to send and receive data from web servers in the background, which allows developers and marketers to track user interactions more seamlessly. Similar to web cookies, JavaScript can gather extensive information about users, such as browsing history, mouse movements, clicks and form submissions, potentially infringing on user privacy. JavaScript tracking could be utilized to track users across different websites, creating profiles of their online activities without explicit consent.

Christopher Keegan

Senior Managing Director

Britt Eilhardt

Managing Director

Julia Krzeminski

Intern

Miles Crawford

Intern