That’s two in three years, in case anyone’s counting

The Weather Channel is settling a lawsuit alleging it violated privacy laws by selling geolocation data collected from its mobile app users, its second such lawsuit – and settlement – in three years.

The terms of the deal are unknown, as TWC and plaintiffs only told the court in a joint report [PDF] that they “have been diligently working to resolve this dispute and have agreed to a resolution in principle.” The resolution, according to court documents, has yet to be finalized. 

The case at issue has been ongoing for three years, and was filed by California resident Jon Hart, joined by two others in the amended complaint [PDF], who alleged that The Weather Channel “tracked users’ locations at all times, day and night, 365 days a year.” 

The plaintiffs argued that TWC didn’t make them aware of that level of tracking, and that the channel then sold the data to third party advertising agencies. 

The Weather Channel was previously accused by the city of Los Angeles of tracking users and selling their data without consent. That case was settled in August, 2020, a couple of months after Hart brought his suit. As part of the settlement TWC was forced to change its disclosure statements to inform users it collected their data continuously and that tracking consent wasn’t necessary to use the app. 

The settlement of the LA case led to the judge in Hart’s case dismissing some of his claims, hence the amended complaint linked above. This updated suit alleged privacy rights violations, and declaratory judgment and unjust enrichment claims against TWC, and cut a pair of previous claims under the Consumer Legal Remedies Act and California Unfair Competition Act. 

Class action denied; Settlement soon after

Hart and his co-plaintiffs were attempting to establish a class action case against TWC, and they failed to convince the judge [PDF] they had the legal standing to do so. 

In a class certification denial decision issued on March 30, US District Judge Jon Tigar said that while the plaintiffs had established some of the necessary requirements to establish a class, they failed on some critical points, namely that a class would be predominant over individual claims in the suit.

More simply put, it wasn’t clear to the court that a class could be formed of people who all had a common privacy-violating experience with TWC. For example, some people may not have known about the tracking – and some may have known about the tracking but ignored it, which some argue is a form of consent, which complicates the way in which the class would be defined. The courts try to avoid situations where a class of people is formed, some of whom had their rights breached and some who didn’t, otherwise organizations could find themselves on the hook when there was no wrongdoing.

“The court agrees with TWC that the resolution of plaintiffs’ [privacy violation] claim under the California Constitution turns on individualized factual questions of whether each user actually maintained their reasonable expectation of privacy,” as Judge Tigar put it in his opinion. 

He said that other courts in his district had found that users who continue to use an application “despite exposure to materials” informing them of potential privacy violations implied their consent by continued usage. The judge added that “the record demonstrates that there is a … ‘panoply of sources’ from which users could have learned that TWC used their location data for advertising purposes” in the wake of the 2020 Los Angeles decision. 

Given that, questions of reasonable expectation of privacy are down to an individual – not a whole class. Tigar denied class certification, and ordered an updated case management statement be handed into the court by April 25 – the day after lawyers for both sides filed their joint settlement report. 

With the class certification denied, it’s not immediately clear what sort of settlement Hart and his fellow plaintiffs would be able to reach with The Weather Channel. It’s also entirely possible the parties don’t want to deal with filing a whole new set of documents now that the case won’t become a class action and just want to end the multi-year saga. 

We likely won’t know for sure until the 60-day vacancy window Tigar specified in his dismissal order [PDF] closes on June 24. If no one has filed paperwork saying the sides couldn’t settle by that date the case will be closed – with prejudice. 

Source – https://www.theregister.com/2023/04/26/weather_channel_privacy/