Commentary

Appeals Court Refuses To Revive Privacy Suit Against Publishers

A federal appellate court has sided with magazine publishers in lawsuits accusing them of violating California's Shine the Light law, which deals with the sale of customer lists.

The 9th Circuit Court of Appeals last week refused to revive lawsuits against Hearst, Conde Nast and Rodale, ruling that the consumers who sued hadn't gone through enough hoops before bringing the cases.

California's 2003 “Shine the Light" law provides that companies selling customer lists must allow state residents to either opt out, or learn who is purchasing their names. The measure also specifies that businesses must provide contact information -- such as a toll-free number or street address -- for consumers who wish to learn who has purchased data about them.

Businesses with brick-and-mortar storefronts can give consumers contact information in person. But if companies only have Web presences in the state, they must provide a link to a privacy policy on their home page. The first page of that link is supposed to contain a mailing address, e-mail address, toll-free telephone number, or fax number that consumers can use to discover who has bought their names. The California law provides for damages of up to $3,000 per violation.

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In 2011, consumers accused around a dozen publishers of violating that law. At least one of those cases seems to have been settled, according to court records. But several others were dismissed by trial judges on the ground that the consumers hadn't suffered any harm. The 9th Circuit upheld three of those dismissals last week, ruling that the consumers couldn't proceed because they hadn't asked the magazine publishers to provide the information. Without first making a request for information, the consumers couldn't show that they were injured by the alleged failure to comply with the law.

Attorney Jay Edelson, who represented the consumers, says they are still weighing their options in terms of trying to appeal.

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