Governance & Risk Management , Legislation & Litigation , Privacy

Judge Again Says Meta Pixel Privacy Case Dismissal Unlikely

A federal judge on Wednesday said he is inclined to let proceed a putative class action lawsuit against Meta over its gathering of data from medical center patient portals through a web activity tracking tool.

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In an amended complaint, plaintiffs allege that the social media giant violated their privacy by harvesting individually identifiable health information from medical websites that had embedded the Meta pixel tracking tool.

Meta filed a motion with the U.S. District Court for the District of Northern California in November seeking dismissal of the amended complaint after District Judge William Orrick had earlier trimmed the scope of plaintiff allegations (see: Judge Gives Green Light to Meta Pixel Web Tracker Lawsuit).

Orrick on Wednesday heard arguments from attorneys on both sides of the case. At the onset of the hearing, Orrick said he would likely dismiss the claims in the plaintiffs lawsuit stemming from a California statute protecting consumers from competition and unfair or deceptive acts but that he was inclined to deny the rest of Meta's motion to dismiss.

Among the arguments posed by Lauren Goldman, an attorney representing Meta, was that the plaintiffs' amended complaint failed to provide specific examples of the patient information that had been transmitted to the company that did not involve information that any public web browsing communication might provide.

"Seems to me that the privacy claims are plausible because the plaintiffs and the healthcare provider have a privileged relationship," Orrick said. "So, the searches on their sites are not random public searches."

He also said other injury claims by the plaintiffs seem plausible, including allegations involving California's anti-hacking law as well as certain trespass allegations.

Orrick said he hoped to issue an order soon.

In his ruling last September, Orrick granted Meta's motion to dismiss several of the plaintiffs' original claims, including negligence per se and allegations of various privacy law violations, but allowed the case to move forward on other claims, including one that alleges that Meta violated state and federal wiretap allegations by intentionally intercepting the contents of plaintiffs' electronic communications using a device.

The plaintiffs took up the judge's offer for an opportunity to file an amended complaint within 20 days to potentially strengthen those allegations.

In its motion to dismiss, Meta argued that the plaintiffs' amended complaint does not strengthen its allegations. The social media giant maintains that plaintiffs allege only information "about their browsing through websites providing healthcare information to the public at large" had been received by Meta, based on the URLs to which the plaintiffs' amended complaint links about the communication.

"Plaintiffs fail to allege that Meta had any 'communication' beyond public pages that anyone - where they are a patient or not - can browse," Meta said in its motion to dismiss the amended complaint.

Because plaintiffs did not identify the specific personal information disclosed, "Plaintiffs' web-browsing information does not satisfy that basic standard, let alone the higher standard to state a claim for intrusion upon seclusion or invasion of privacy," Meta argued.

Complex Case

The first case in the Meta Pixel dispute was filed on June 17, 2022, by plaintiffs alleging that healthcare providers sent Meta their sensitive health information through Meta’s Pixel tool, which the healthcare providers allegedly configured on their websites.

On Oct. 12, 2022, the court consolidated the first case with three other related cases. To date, claims against Meta from 17 cases have been consolidated into this action, Meta said in its motion to dismiss.

Orrick said he had been inclined to deny Meta's motion to combine into the consolidated lawsuit claims against the company that are made in a separate related lawsuit that was filed against telehealth provider Hey Favor, Meta, TikTok and several other companies that also involved privacy issues related to the use of Pixel and collection tools in Meta's software developers kit.

Orrick said that he would forge ahead with his earlier decision to keep the claims against Meta in the Hey Favor case separate.