• by Wendy Davis , 2 hours ago

A California resident who visited Burger King's website can move forward with a lawsuit over allegations that the fast food chain's owner failed to honor his request to reject tracking cookies.

The ruling, issued Monday by U.S. District Court Judge Jacqueline Scott Corley in the Northern District of California, came in a lawsuit filed earlier this year by Daniel Pemberton. He alleged that he visited Burger King's site in March 2023, and was greeted with a cookie banner that gave him the option to reject the sale or sharing of his data.

Pemberton alleged that he opted out of data-sharing, but that information about his website activity was nevertheless transmitted to outside companies including Google, Meta and Microsoft.

His class-action complaint included claims that Burger King's corporate owner violated various privacy laws.

The company "falsely told website users that it respected their privacy and that they could avoid tracking and data sharing when they browsed the website," Pemberton alleged.

"Despite receiving notice of consumers’ express declination of consent, defendants defied it," the complaint continued.

Burger King's parent company urged Corley to dismiss the case at an early stage for several reasons. Among others, the company said Pemberton lacked "standing" to proceed, arguing that even if his allegations were proven true, they wouldn't show that he experienced the kind of "concrete" injury that warrants a lawsuit.

Corley rejected that argument.

"Plaintiff ... alleges defendants deprived him of control of his personal information regarding his online activity, which is a concrete injury to his right to privacy," Corley wrote.

The company also argued that the complaint's allegations, even if proven true, would not show that Burger King intentionally disregarded his opt-out request.

"Plaintiff alleges that he visited the website and opted out of targeted advertising, but that the opt out function described above did not work properly. If that is true, any reasonable person would conclude that there was a technical issue with the opt-out functionality, particularly given the lengths the website goes to to disclose its practices and create such a cookie banner in the first place," the company argued.

Corley's ruling allows Pemberton to proceed with several claims, including invasion of privacy and "intrusion upon seclusion" (a privacy claim that can be brought in California, and involves "highly offensive" activity). She dismissed several other claims without prejudice, meaning Pemberton can attempt to amend those claims and bring them again.

In July, U.S. District Court Judge Jon Tigar, also in the Northern District of California, rejected a request by Motorola to dismiss a similar lawsuit.