A federal judge has revived part of a class action complaint alleging Google improperly collected the personal data of users younger than 13 who watched and interacted with YouTube videos.
In July, federal Magistrate Judge Susan Van Keulen, in the Northern District of California, dismissed for a sixth time a class action lawsuit accusing Google of violating privacy rights under California law and the laws of more than a dozen other states. The suit dates to 2019, when attorneys from the Pritzker Levine firm, of Emeryville, filed the complaint in San Jose federal court. Those attorneys were later joined by lawyers from Silver Golub & Teitell, of Stamford, Connecticut.
The lawsuit chiefly names Google as a defendant but also targets toymakers, television networks and others who create and promote YouTube content aimed at children younger than 13, including Cartoon Network, Dreamworks, Hasbro and Mattel. The suit alleges those defendants violated state laws by collecting information about young users to better target advertising and programming.
Van Keulen issued the July dismissal with limited leave to amend, and in a Jan. 13 ruling on the plaintiffs’ sixth amended complaint agreed to let some of the claims continue — against Google only — while foreclosing the remainder of the lawsuit from continuing and dismissing all claims against entities that operated YouTube channels on the grounds the amended complaint doesn’t establish direct or secondary liability.
“Plaintiffs assert that defendants committed the specific privacy tort of intrusion upon seclusion,” Van Keulen wrote. “They also assert that defendants violated the right to privacy guaranteed by the constitution of California, a violation which parallels intrusion upon seclusion.”
The legal question, she continued, is whether the alleged conduct was “a highly offensive intrusion” upon an area with an otherwise reasonable privacy expectation. Van Keulen noted she’d previously dismissed such claims after finding plaintiffs failed to reach the lofty legal bar of “highly offensive conduct,” specifically noting Google was alleged to have engaged in otherwise ubiquitous commercial behavior without any allegation of secrecy, deception or something else.
Google argued the amended complaint still didn’t adequately impugn its business model, but Van Keulen said at least two new allegations suffice.
Among the convincing changes are allegations that Google responded to a content creator’s inquiry about whether YouTube complied with the Children's Online Privacy Protection Act by developing and circulating an internal narrative explaining “YouTube is a MUST buy for kids 6-11” - notable because Google also operates YouTube Kids, which is explicitly not supposed to use the typical tracking and advertising scheme.
“Based on these allegations, the court may reasonably infer at the pleading stage that, despite the existence of YouTube Kids, Google nevertheless targeted children in connection with the main YouTube website and that platform’s data tracking,” Van Keulen wrote. “The court cannot conclude as a matter of law that targeting children with a website that will collect their data does not constitute highly offensive behavior.”
She further said the allegation allows the inference Google affirmatively targeted children, which is distinct from prior readings that children might have been impacted by otherwise routine corporate conduct. She also noted new allegations that several content creators told Google they were concerned YouTube might not comply with COPPA regulations.
Even as Google responded to those concerns, the plaintiffs alleged it understood young children were regular YouTube users, allowing her to accept claims the company knew it was collecting data outside what COPPA allows. Earlier versions of the complaint, she explained, didn’t allege a known violation, only “common commercial behavior that happens to violate the law,” which is not a “highly offensive” situation.
With those claims proceeding, Van Keulen again dismissed unjust enrichment claims, finding the plaintiffs didn’t dispute defendants’ arguments there was no unjust enrichment nor did any enrichment occur at the expense of potential class members. However, because she allowed the loss of privacy allegations to continue, Van Keulen also revived the consumer protection claims under Indiana, Massachusetts and New Hampshire laws, as those do not require demonstration of a financial loss, only the deprivation of expected privacy. Under other state laws — adding Florida, Michigan and Tennessee, but removing Indiana — the plaintiffs are entitled to seek court orders if they can prevail on their loss of privacy claims.
Van Keulen said the amended complaint didn’t sufficiently allege a loss beyond privacy, such as a direct or indirect economic loss or the reduced value of plaintiffs’ information. However, she also said Google failed to make adequate state-specific arguments to defeat the surviving privacy claims. That means the action will continue with respect to pursuit of damages in Indiana, Massachusetts and New Hampshire as well as injunctive and equitable relief under laws of Florida, Massachusetts, Michigan, New Hampshire and Tennessee.
Silver Golub & Teitell declined to comment on the decision and the state of their lawsuit.
Neither Pritzker Levine nor Google responded to a request for comment.