Judge William H. Orrick of the US District Court for the Northern District of California said the plaintiffs’ invasion of privacy claims under the California Constitution and common law seemed plausible because of the privileged relationship between the plaintiffs and their health-care providers.
The plaintiffs are anonymous Facebook users who are residents of Maryland, Wisconsin, North Carolina, Ohio, and Missouri. They allege that Meta encourages health-care providers to install the Facebook pixel on their websites and share protected information with it, in violation of federal and state laws, and its promises to users.
According to the amended consolidated complaint, Meta matches the information it collects from the pixel with Facebook user IDs, and then targets those users with advertising without their consent.
The plaintiffs also presented plausible allegations of injury related to their claims of common law trespass to chattels and violation of the California Computer Data Access and Fraud Act, Orrick said.
Orrick previously rejected Meta’s motion to dismiss five of the claims in the plaintiffs’ original consolidated complaint in September, for breach of contract, breach of the duty of good faith and fair dealing, unjust enrichment, and violations of the Electronic Communications Privacy Act and the California Invasion of Privacy Act.
Sensitive Information
The hearing concerned Meta’s motion to dismiss the plaintiffs’ amended complaint, where they repleaded several claims Orrick had dismissed in the previous ruling.
Meta attorney Lauren R. Goldman, a partner at Gibson, Dunn & Crutcher LLP, urged Orrick to reconsider his conclusion that the content of the plaintiffs’ searches on the websites at issue in the complaint revealed sensitive health information that could give rise to an invasion of privacy claim.
The Ninth Circuit ruled in Smith v. Facebook that URLs containing information about medical conditions, such as melanoma, or about specific doctors didn’t support the plaintiffs’ claims in that case, because the connection between a person’s browsing history and his or her own state of health was too tenuous, she said.
“So it is precisely like the allegations that are at issue here in the amended complaint,” she said.
But Jay Barnes, a partner with Simmons Hanly Conroy LLP, who represents the plaintiffs, said the judge should look to guidance from the Federal Trade Commission, which has said that health information is anything that “conveys information or enables an inference” about consumers’ health.
It’s “highly relevant” that the FTC thinks consumers shouldn’t have to worry that “their most private and sensitive information may be disclosed to advertisers and unnamed third parties” when they visit hospital websites, he said.
Tort Claims
Goldman also argued that the plaintiffs didn’t allege a significant enough intrusion by the Facebook pixel into their devices to support their trespass claims against the company.
The plaintiffs’ claims that the pixel took up storage space on their computers and slowed the loading time of webpages by about a second were merely “de minimis” harms.
Courts have repeatedly held that they won’t permit trespass claims or claims under CDAFA where there isn’t a significant interference with the functioning of the computer, she said.
Barnes replied that the key test for a compensable trespass injury under California law is a “measurable harm” to the use of the computer system, rather than whether such a harm was significant enough.
In Ebay Inc. v. Bidder’s Edge, eBay was able to go to court and obtain redress for measurable loss from trespass into its systems without showing that it was significant, he said.
“And our position is, so too should an average American consumer,” he said.
Cohen Milstein Sellers & Toll PLLC, Terrell Marshall Law Group PLLC, Kiesel Law LLP, and Gibbs Law Group LLP also represent Doe and the proposed class.
Cooley LLP also represents Meta Platforms.
The case is In re Meta Pixel Healthcare Litig., N.D. Cal., No. 3:22-cv-03580, oral argument 1/17/24.