Viacom Nailed for Nickelodeon Site Tracking

     (CN) — Though it let Google off the hook, the Third Circuit said Viacom must face claims that it misled visitors of Nickelodeon’s website about targeted advertising.
     The ruling Monday came in connection to multidistrict litigation involving 13 children who said Viacom and Google secretly tracked their activities on Viacom-operated websites such as nick.com and nickjr.com.
     Viacom assigns each user a so-called “rugrat” code based on his or her gender and age, and monitors what games they play and which videos they watch.
     The children said Viacom provided Google with access to their profile information, which allowed Google to show “targeted advertising to them based on their individualized web usage communications, and videos requested and obtained.”
     A federal judge dismissed the action in 2014, tossing aside the claim that because Google owns YouTube, it is a “video tape service provider” under the Video Protection and Privacy Act.
     Though the Third Circuit agreed with the ruling as to Google on Monday, the Philadelphia-based federal appeals court found that Viacom could be liable.
     Since Viacom’s message to parents on its website says it does not collect children’s personal information, that claim may have led parents to permit their child to browse nick.com under false pretenses, according to the ruling.
     “The plaintiffs have adequately alleged that Viacom collected personal information about children despite its promise not to do so, and we further believe that a reasonable jury could conclude that Viacom’s conduct in breach of its promise was highly offensive under New Jersey law,” Judge Julio Fuentes wrote for a three-judge panel.
     In dismissing other claims, Fuentes saw no evidence that Viacom disclosed personally identifiable information to Google by sharing age and gender information from kids’ profiles.
     Fuentes emphasized that the disclosure of the children’s IP addresses and browser fingerprints is not protected because it is not specifically related to their video-watching behavior.
     “If, for example, Google were to start purposefully leaking its customers’ YouTube video-watching histories, we think such disclosures would almost certainly violate the Act,” the 76-page opinion states. “But trying to analogize between that kind of disclosure and Google’s use of cookies on Viacom’s websites is, at best, a strained enterprise.”
     Google is likely able to identify a person in the real world based on their IP address, but the 1988 Video Privacy Protection Act did not contemplate internet privacy matters, the court found.
     “If an IP address were to count as personally identifiable information, either standing alone or coupled with similar data points, then the disclosure of an IP address to any Internet company with registered users might trigger liability under the Act,” Fuentes wrote. “Indeed, the import of the plaintiffs’ position seems to be that the use of third-party cookies on any website that streams video content is presumptively illegal. We do not think the Video Privacy Protection Act sweeps quite so broadly.”
     Rather than challenging the proposition that the use of “cookies on websites geared toward adults” is generally acceptable, Fuentes said the plaintiffs fell “back on the claim that the use of cookies to track children is particularly odious.”
     “We are not so sure,” Fuentes wrote. “Google used third-party cookies on Nick.com in the same way that it deploys cookies on myriad others websites. Its decision to do so here does not strike us as sufficiently offensive, standing alone, to survive a motion to dismiss.”

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