• by Wendy Davis  @wendyndavis, September 13, 2024

Siding with TikTok, a judge ruled that the company won't have to face class-action claims that it violated non-TikTok users' privacy by tracking them at websites operated by Hulu, Etsy and other outside companies that allegedly embed TikTok's pixel.

The ruling, issued on September 9 by U.S. District Court Judge Stanley Blumenfeld, Jr. in the Central District of California, appears to allow the individual users who brought the case to proceed -- but only on behalf of themselves. That type of individual litigation can be prohibitively expensive.

Blumenfeld issued the ruling under seal and hasn't yet posted a publicly available version.

The new decision comes in a lawsuit initially brought in June 2023 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, not herself a 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 TikTok's technology allows it to collect information about users even when they attempt to block cookies set by third parties.

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

In October, Blumenfeld threw out some claims, but 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.

Earlier this year, attorneys for Griffith and the others sought to certify a class of all U.S. residents who had visited a site that used the TikTok pixel from March 2022, and who weren't themselves TikTok users. That class could have totaled up to 100 million people, according to court papers. (The plaintiffs also sought to certify several subclasses, such as non-TikTok users who visited Hulu.)

TikTok countered in papers filed in July that the proposed classes were “wildly and unworkably broad.”

The company also contended that collecting browsing data is “commonplace and perfectly legal,” and that collecting browsing information only becomes actionable if the information is “identifying and sensitive.”

Determining whether sensitive and identifying information was disclosed by Hulu and other outside websites would require individual-by-individual inquiries -- which rules out class certification -- TikTok argued.

“Whether information is disclosed ... let alone whether it is private or protectible, depends on the website and its design, the installation and configuration of the tools, and users’ settings and interactions with websites,” the company wrote.

The matter could go to trial in January, assuming the individual plaintiffs plan to proceed.