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Ninth Circuit Revives Class Action Suit against Facebook for Selling Users’ Browsing History

Publications / Apr 30, 2020

Article written by Haim Ravia, Dotan Hammer and Adi Shoval

The Court of Appeals for the Ninth Circuit reversed a district court’s dismissal of class action privacy claims alleging that Facebook used website plug-ins to track users’ browsing histories when they visit third-party websites and then complied those histories into personal profiles sold to advertisers.

The Ninth Circuit held that users had a reasonable expectation of privacy once they logged-out of the social network. The court also refused to dismiss claims that Facebook’s tracking and collection practices may have violated the wiretap act, explaining that while the statute insulates from liability a person who is a “party” to a communication, Facebook should not be deemed a party to the communication of a URL sent by the user’s browser to third party sites they visited.

The court also agreed that plaintiffs’ have standing to claim unjust enrichment, dismissing Facebook’s defense that plaintiffs must demonstrate that users either planned to sell their own data or that their data was made less valuable because of Facebook’s use of the data. The court held that California law recognizes a right to disgorgement of profits resulting from unjust enrichment even where an individual did not suffer a corresponding loss.

The case will now be remanded to the district court for further proceedings.

CLICK HERE to read the Ninth Circuit’s decision in re: Facebook, Inc. Internet Tracking Litigation.