Web measurement company comScore suffered a major defeat in court this week, when a federal judge ruled that consumers who are suing the company for privacy violations can proceed with a class-action.
U.S. District Court Judge James Holderman in the Northern District of Illinois this week certified a class of everyone since 2005 who downloaded comScore's software from a third party. Holderman also certified a smaller subgroup of people who weren't shown a hyperlink to comScore's end user license agreement before downloading the software.
Jay Edelson, lawyer for the consumers who brought the case, estimates that the class could total 1 million people.
The lawsuit was filed in 2011 by two comScore panelists, Jeff Dunstan of California and Illinois resident Mike Harris, who allege that they installed comScore's software after downloading a free product -- like a screensaver, game or program that creates greeting cards.
They say that comScore's terms of service don't alert users about the “terrifying” amount of data the company collects -- including usernames and passwords, search queries, credit card numbers and retail transactions. comScore's terms also don't inform users that the software can change files on people's computers, as well as modify their security settings, Dunstan and Harris allege.
They also contend that comScore's marketing partners -- who bundle comScore software with freeware -- often don't disclose information about comScore until after users have started downloading the free programs. Dunstan and Harris argue that comScore violated various federal privacy laws by capturing information from people's computers without their informed consent.
comScore unsuccessfully argued that the case didn't lend itself to class-action certification because questions about consent require case-by-case analysis. But Holderman ruled that the lawsuit presented many common questions, including whether the comScore's data collection practices went beyond what the company said in its terms of service.
The ruling will likely increase the pressure on comScore to settle the case, Seattle-based Internet legal expert Venkat Balasubramani tells Online Media Daily. One reason is that the relatively large size of the class means that comScore potentially faces the risk of high damages if it loses at trial. Another is that the major question in the case appears to be whether comScore's terms of service disclosed enough information about its data collection.
“It comes down to a consent issue,” Balasubramani says. “In other cases, there's more of a gray area about about whether the conduct fits within a statute.”
For instance, consumers in a lawsuit against Facebook argued that the company's Sponsored Stories violated a 1971 California law regulating the use of names and photos in ads. Facebook agreed to settle that litigation for $20 million, but it was never clear that Facebook's practices were covered by the California law, which was passed before the emergence of social networks. comScore did not respond to Online Media Daily's request for comment.