LOS ANGELES (CN) - It's not a scary movie: it's a class action against Mattel, in which two mothers claim the talking Hello Barbie doll invades children's privacy by recording their conversations and storing them in the cloud.
Ashley Archer-Hayes and Charity Johnson sued Mattel, ToyTalk, and Samet Privacy dba kidSAFE Seal Program in Superior Court on Monday on behalf of their young children, C.H. and A.P.
"This lawsuit should not be mistaken for a frivolous complaint over a toy," their attorney Michael Kelly told Courthouse News in an email.
"Providing hackers, who know no bounds in their invasive activities, with potential interactive access to any child or adult who is in proximity of a doll, is a very serious matter, and dictates the very highest safeguards and warnings available," Kelly said.
Barbie - Barbara Millicent Roberts - was created more than 50 years ago by Ruth Handler and named after her daughter. Mattel launched the doll on March 9, 1959. March 9 is therefore Barbie's birthday. Her longtime beau, Ken, appeared in 1961, followed by dozens of pets, including a zebra. Mattel claims that more than 1 billion Barbies have been sold, in 150 countries. The BBC reported in 2006 that three Barbie dolls were being sold every second.
Controversy is one of Barbie's oldest accessories. Critics claim her unrealistically slim proportions can cause girls who want to look like her to develop eating disorders. An early version of the doll came with a booklet on weight loss that advised girls, "Don't eat!" Another included a pink bathroom scale permanently set to 110 lbs., which would make Barbie 35 percent underweight if she were a full-scale woman, according to information copiously provided on Barbie Internet pages.
The Monday class action revolves around the Hello Barbie doll launched this year, which uses speech recognition software to "talk" to kids and stores their conversations in the cloud.
Users must create an account with ToyTalk and register the doll before they can talk with it. ToyTalk then sends an email seeking permission to activate the doll's speech processing software and a follow-up email informing parents that though Hello Barbie records audio, the recordings will not be used to advertise to kids and that any personal information kids share with the doll will be deleted as soon as ToyTalk becomes aware of it, according to the 16-page complaint.
Mattel says on its website that Hello Barbie complies with the privacy requirements under the Children's Online Privacy Protection Act (COPPA). But Archer-Hayes and Johnson claim that kidSAFE, an independent company that certifies toys under COPPA, has not certified the doll or its software.
Among other things, COPPA bans companies from collecting personal information from children unless they indicate what kind of information is collected and how it is used, and get parental consent to collect the information.
"Personal information' includes the child's identifying contact information, geolocation, and voice captured in an audio file," the complaint states.
Companies must allow customers to refuse data collection, make available any personal information they do collect, and protect the confidentiality of that information.
But the plaintiff parents say Mattel does not protect the privacy of children who are recorded by a Hello Barbie doll that belongs to someone else.
Archer-Hayes says she gave her daughter a Hello Barbie doll for her birthday at a Barbie-theme party on Dec. 2.
Johnson's daughter was at the party and played with the doll, which recorded her voice though she does not have a ToyTalk account.
"In light of the above, plaintiffs bring this action ... arising from ToyTalk and Mattel's production of an Internet-enabled doll directed at children that is incapable of satisfying the requirements of COPPA and kidSAFE's [sic], despite ToyTalk and Mattel's false and misleading representation that the product does in fact comply with COPPA. Further, as award-winning and leading toy manufacturers, ToyTalk and Mattel have a duty to take all reasonable measures to protect the personal information they collect from children," the complaint states.
The moms claim that thousands of children across the country have been recorded by Hello Barbie dolls without their parents' knowledge or permission.
Mattel and ToyTalk should have known that children would play with the doll with other kids, who would be recorded, according to the complaint.
The companies should have created a process to recognize when someone other than the owner uses the Hello Barbie doll and either delete those recordings or seek parental consent to store them in the cloud, the mothers say.
Alternatively, Mattel should warn people buying the doll that the "only lawful use" of it is "outside the presence of nonregistered children under the age of thirteen," according to the complaint.
Archer-Hayes says she would not have bought the doll if she had known her daughter could not share it with her friends.
People who bought the doll have suffered "emotional distress, loss of privacy, and overpayment," while class members whose children were unlawfully recorded have suffered "emotional distress and loss of privacy," the complaint states.
A ToyTalk spokesman told Courthouse News in an email that the company was aware of the lawsuit.
"Hello Barbie is certified as-COPPA compliant by kidSAFE, a children's privacy certification program approved by the U.S. Federal Trade Commission. Because the claim is pending, we have no further comment at this time," the spokesman wrote.
Mattel did not immediately return emailed requests for comment on Tuesday.
The mothers seek class certification, an injunction, disgorgement, and statutory, special and exemplary damages for unfair competition, negligence, unjust enrichment, and invasion of privacy.
Their attorney Kelly is with Kirtland & Packard in El Segundo.
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