On March 17, 2021, a California federal judge partly denied the Weather Channel’s motion to dismiss a proposed class action over the company’s location data practices, which the plaintiff claims violated his privacy rights and various California laws. The court allowed the plaintiff’s constitutional, unjust enrichment, and declaratory judgment claims to proceed, but dismissed plaintiff’s unfair competition claim without prejudice for lack of statutory standing and the Consumer Legal Remedies Act claim because plaintiff agreed to its dismissal. As a result, the Weather Channel will have to continue to defend against allegations that its collection and sale of location data was improper.
The lawsuit, Hart v. TWC Product and Technology LLC, centers on whether the Weather Channel’s mobile app sufficiently disclosed its collection and use of location data. The plaintiff claims that the app failed to disclose the extent of its tracking and the fact that it sold location data. According to the complaint, users were prompted to let the Weather Channel App access their “location,” but were not informed in the prompt that the app would track precise geolocation data even when the app was closed or that the Weather Channel would sell the data to third parties for advertising and marketing purposes. The plaintiff claims that he did not consent to the extensive collection or sale of his location data and that these practices infringe his privacy.
The Weather Channel moved to dismiss all claims, arguing that its Privacy Policy and Privacy Settings page made adequate disclosures. Those disclosures stated that the app collected location data to provide geographically relevant ads, that ad and analytics partners may collect data through the app, and that the Weather Channel may share location data with third parties.
In allowing the constitutional claim to proceed, the court ruled that the plaintiff plausibly asserted a violation of his privacy rights. In the judge’s eyes, the fact that the app sought permission to access users’ location data and incorporated a privacy policy that disclosed the underlying activity did not eliminate users’ reasonable expectation of privacy in the data. Assuming the truth of the allegations in the complaint, the court held that the Weather Channel’s privacy policy amounted to a browsewrap agreement because users had not consented to the app’s data practices through a click-wrap agreement. Thus, the court concluded that “the mere existence of a privacy policy is not dispositive because users might lack actual or constructive knowledge of it.” The judge also noted that whether a privacy intrusion is highly offensive cannot be determined at the motion to dismiss stage and concluded that the plaintiff had plausibly alleged this element.
The ruling comes at an early stage in the litigation, but it highlights two important points. First, even if a business’s privacy policy discloses its data practices, courts may find potential merit in the argument that without proper notice, privacy policy disclosures are insufficient to inform consumers about those practices. Accordingly, it is especially important to direct consumers to applicable policies at relevant points in consent flows to bolster the argument that consumers are on notice of the business’s data practices.
Second, consumers’ expectations of privacy are not necessarily binary. Like the judge here, other courts have held that the expectation of privacy consists of degrees and nuances. For that reason, permission to use data in one way (e.g., collecting location to serve personalized weather forecasts and alerts) may not constitute permission to use the data in other ways (e.g., alleged 24/7 monitoring of location data that is sold to third parties). Additionally, the opinion suggests that the scale of data collection is an important factor in consumers’ reasonable expectations of privacy.
