• by Wendy Davis  @wendyndavis, January 2, 2024

TikTok plans to defend itself in a privacy lawsuit by arguing that non-TikTok users consented to being tracked when they visited websites operated by Hulu, Etsy and other outside companies that allegedly embed TikTok's pixel, according to court papers filed last week.

“Plaintiffs visited and continued to visit the relevant websites knowing that those websites collected information about those visits that was shared with third parties like defendants,” the company writes in its answer to a lawsuit alleging violations of federal and California privacy laws.

The new papers come in a class-action complaint initially brought in June by California resident Bernadine Griffith. She alleged that TikTok's pixel -- a tool publishers can install on their sites to collect ad-related data -- enables the company to compile information about web users, regardless of whether they have accounts with TikTok.

Griffith, a non-TikTok user, alleged that the company “secretly intercepted and collected” her browsing and search data from sites including the streaming service Hulu, online marketplace Etsy, and retailer Build-a-Bear Workshop.

She also alleged that TikTok's technology allows it to collect information about users even when they attempt to block cookies set by third parties.

TikTok countered that the claims were “non-starters,” arguing Hulu, Etsy and Build-a-Bear disclose that they allow third parties to collect data.

“Plaintiff’s complaint against data sharing ... is equivalent to complaining about how the Internet works,” TikTok's lawyers wrote in a motion filed in July.

In October, U.S. District Court Judge Stanley Blumenfeld, Jr. in the Central District of California largely rejected TikTok's argument. While he threw out some claims, he allowed Griffith to move forward with the bulk of her complaint, including claims that TikTok violated California privacy standards. He noted in the ruling that other judges in California had allowed privacy lawsuits over online tracking to proceed against Meta and Google.

Griffith -- along with several other non-TikTok users -- then filed an amended complaint that included additional details, as well as a claim that TikTok violated the federal wiretap law.

In November, TikTok again urged Blumenthal to dismiss the entire lawsuit, arguing that the amended complaint doesn't indicate that TikTok collected data that was either sensitive or personally identifiable.

Blumenfeld rejected that request last month, reiterating his prior ruling that allowed most claims to proceed.

TikTok set out its prospective defenses in an answer filed last week. Among other arguments, TikTok said it would claim users agreed -- either explicitly and implicitly -- to be tracked.

“Plaintiffs’ claims are barred ... because of users’ consent to, or authorization of, defendants’ alleged conduct either by affirmative consent to those websites’ privacy policies or by their continued use of those websites,” the company wrote.

The company also plans to argue that any alleged privacy violation was caused by the web publishers that installed the pixel.

“Is the operators of the websites at issue who choose to use the tools provided by Defendants and who choose how to configure those tools,” the company contends.

“Defendants’ contracts with the operators of websites at issue who use defendants’ tools require defendants to obtain all consent required by law and to otherwise ensure the tools have been configured according to law.”

Some of the lawsuit's allegations appeared to stem from a September 2022 Consumer Reports investigation concluding that TikTok “is partnering with a growing number of other companies to hoover up data about people as they travel across the internet.”

According to Consumer Reports, hundreds of large organizations including Weight Watchers, Planned Parenthood and the Girl Scouts were sending data about web visitors to TikTok. The report separately found that Google's and Meta's tracking tools were far more prevalent than TikTok's.