Clicks, Code and Courtrooms: Pixel Litigation
This is not the first time that I have talked about pixel litigation, and it likely won’t be the last. Since the last time I raised this litigation trend, it has continued to gain traction. So, in this edition of Take a Second we are going to dig into pixel litigation, the theories being used in lawsuits, and some things to consider. Without further ado, let’s hop to it!
What are pixels?
I’m sure some of you already know what a pixel is, but before we move forward, I think it’s important to make sure we are all on the same page. A pixel, or tracking pixel, generally is a small snippet of code embedded on a website. When a user visits the site, the pixel communicates with a third-party server and often passes the user’s behavior data via HTTP requests. Pixels can gather data on users’ activities such as page views, clicks, form submissions, and similar events (and, depending on how it’s configured, items like URLs visited and device/browser identifiers). While the word pixel is also used in other instances, for our purposes we are talking about tracking pixels here.
How are pixels being used?
Pixels are a tool that is typically used for advertising purposes. Because the pixels capture information about the user when they visit the site, this information can then be used to tailor advertising to users based on their online behaviors.
What theories of litigation are we seeing?
Now that we have a very general understanding of pixels, let’s talk about the types of cases percolating. Some of the early cases alleged violations of the Federal Wiretap Act (often referred to as the anti-wiretapping statute). This statute is from 1968, was created to prohibit the unauthorized or intentional inception, use, or disclosure of wire, oral, or electronic communications. And since it was enacted in 1968, it obviously did not contemplate the use of pixels when it was created. But that hasn’t stopped plaintiffs’ attorneys from bringing cases alleging violations of this Act. State privacy statutes are also being used as the basis for lawsuits against companies utilizing pixels. And last, but certainly not least, there have been actions brought alleging violations of the Video Privacy Protection Act (VPPA). This law was passed in 1988—again, well before pixels were even contemplated. This law was created to prohibit video service providers from knowingly disclosing consumer’s personally identifiable information or PII without written or electronic consent.
So, at this very moment, you are probably sitting here saying, “Wait, what! Haleigh, why are lawyers bringing cases alleging violations of laws that were created in a day and age before pixels were used this way?” And to that I would say: because they have found a way to argue that those laws are still relevant to these cases. So far, several cases have been successful in moving forward under alleged violations of the statutes I mentioned. This means that paying attention to decisions on pixel-related cases will continue to be important.
Typically, the arguments being brought, regardless of statute, hinge on the privacy disclosures that were provided to users and whether they were clear and conspicuous. Cases also highlight the placement of disclosures and whether users were actually aware of them. Deceptive practices, consent, and sharing practices are also prevalent in litigation on this topic, and in some industries plaintiffs have also focused on whether sensitive information was disclosed to third parties.
To sum it up…
Pixel litigation isn’t going anywhere, even with laws that were made for a different age as the basis for the lawsuits being brought. I think it’s important to keep an eye on state legislatures, as I do think there will be an uptick in state-level privacy statutes that will likely lead to additional theories for pixel litigation. At the same time, don’t lose sight of the cases that are currently being litigated on this topic. Those outcomes will be telling as we move forward.
For now, it is increasingly important that you know what your website is tracking and how that information is being collected and whether it is being shared. Keeping up-to-date on the types of data/information that your website collects is imperative. Work with your IT, compliance, and legal teams to ensure that your website is where it needs to be in light of these challenges. Things like reviewing privacy policies and disclosures on a regular basis are always good practices.
As always, this article is intended for general information only and does not constitute legal advice. If you have any questions about this topic and/or possible implications, you should contact your attorney for advice.
Hope to see you next time when we take a second to break down another trending legal topic!
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