Weekly Law Resume - January 2014: Defamation – Torts – Privacy Rights – California’s “Shine the Light” Law

by Low, Ball & Lynch
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David Boorstein v. CBS Interactive, Inc.
Court Of Appeal, Second Appellate District (December 19, 2013)

In 2003, California passed the “Shine the Light” law (“STL”), in Civil Code Section 1789.83. This allows individuals to learn about how businesses sell their personal information. Under the law, companies that do business with California residents have to either allow customers to opt out of information-sharing, or make a detailed disclosure of how personal information was shared for direct marketing purposes. This case considered the extent to which a plaintiff must have personal “standing” to bring an action under the law.

Plaintiff David Boorstein (“Boorstein”) subscribed to cbssports.com, a website operated by defendant CBS Interactive, Inc. (“CBS”), to play fantasy football, baseball, and basketball games. Plaintiff provided his name, email address, date of birth, and zip code to CBS. His suit alleges that CBS shared users’ personal information with third parties and did not comply with California’s STL as well as the Unfair Competition Law under Business and Professions Code section 17200 et seq.

In its demurrer to the first amended complaint, CBS argued that: 1) plaintiff failed to allege that his personal information was shared; 2) plaintiff did not make a disclosure request as required under STL; 3) plaintiff did not allege an injury; 4) CBS complied with STL by providing contact information on its website; and 5) CBS complied with STL by its privacy policy. At the demurrer hearing, plaintiff’s counsel admitted that plaintiff did not make a disclosure request, but argued that a request was not required. The trial court disagreed and sustained the demurrer without leave to amend. The case was dismissed and plaintiff appealed.

The Court of Appeal for the Second District agreed with the trial court that plaintiff was required to make a disclosure request in order to have standing under STL. Since it was undisputed that Boorstein did not make a disclosure request, the demurrer was properly sustained.

The main issue was whether Boorstein had standing to bring his claims. CBS contended that to have standing under STL (and under the UCL), a customer must have made or attempted to make a disclosure request. Plaintiff claimed that a disclosure request was not necessary because defendant failed to provide contact information as required by STL.

The Court of Appeal concluded “that a plaintiff must have suffered a statutory injury to have standing to pursue a cause of action under STL, regardless of the remedies he or she seeks.” This conclusion is similar to another STL action brought by the same plaintiff in Boorstein v. Men’s Journal LLC, (C.D. Cal. 2012) 2012 WL 2152815.

The Court of Appeal also rejected Boorstein’s argument that he suffered an “informational injury” when CBS failed to provide contact information for customers to make requests under STL. The Court said that plaintiff did not cite any California cases recognizing “informational injury,” and the Court knew of no cases that recognize such an injury. The Court also noted that an “informational injury” may be cognizable in some cases, but “a defendant’s failure to post information on its website in the manner the statute requires, without more, does not give rise to a cause of action.”

COMMENT
This case makes clear that to recover on a cause of action under STL, a plaintiff must show that he made or attempted to make a disclosure request in order to have standing to pursue the claim. Interestingly, the Court of Appeal left the door open for “informational injuries” and these types of cases could be forthcoming in the future.

For a copy of the complete decision see:

http://www.courts.ca.gov/opinions/documents/B247472.PDF

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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