Class Cert Denied in Facebook Privacy Case

SAN JOSE (CN) - A federal judge thwarted attorneys' efforts to establish a class of plaintiffs that could sue Facebook for infringing on their privacy rights by sending information to third-party websites.

U.S. District Judge Ronald Whyte denied the motion for class certification in Facebook privacy litigation filed in July, saying the experience of plaintiff Wendy Marfeo is too specific for her to lead a class of plaintiffs with similar claims.

"Plaintiffs have not established that breach or misrepresentation can be established by common proof on a class-wide basis," Whyte wrote in his Friday order.

The dispute centers on a technical aspect of web surfing called "referrer headers." When someone browsing Facebook's platform clicks on an advertisement, the site she redirects to is sent a referrer header, which shows the URL of the website that exposed her to the ad.

Referrer headers are not unique to Facebook. But according to Marfeo, when she clicked an ad on Facebook, it divulged her personal information to the second website despite Facebook's assurances it would not do so in its privacy policy.

Facebook acknowledges that, in theory, a third party could identify the specific Facebook user who clicked on an ad from information contained in the referrer header, according to Whyte's 19-page order.

Marfeo and her attorneys claim that her experience could extend to a large nationwide class, asserting that anyone who clicked on a Facebook advertisement could have had his or her private information disclosed to a third party in strict violation of the social media network's terms of service.

Facebook argued Marfeo's situation was unique and not representative of every Facebook user's experience and should therefore be considered on an individual rather than class-wide basis.

For instance, Facebook says certain users may have employed or installed various privacy tools on their computer capable of removing the contested information from the referrer headers, according to Whyte's ruling.

Facebook also showed evidence that different web browsers handle referrer headers differently. In addition, some companies and networks use proxy servers, which would effectively eliminate all referrer header information.

Facebook provided several examples of users clicking on ads for which the referrer headers did not contain the personally identifiable information at issue in the case.

While Marfeo argues Facebook's assertions lack proof, Whyte noted it was the plaintiff's burden to show that her claims predominated throughout the class.

"Facebook has produced unrefuted evidence that the questions of breach and misrepresentation cannot be resolved through Facebook's ad click data alone," Whyte wrote.

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