• by Wendy Davis , 11 hours ago

The diet app MyFitnessPal must face some privacy claims over its alleged failure to honor web users' request to reject tracking, a federal judge has ruled.

The decision, issued Tuesday, marks at least the fourth time in recent months that a judge in the Northern District of California has rejected companies' bid to dismiss lawsuits by web users who alleged they were tracked after attempting to opt out.

The new ruling, handed down by U.S. District Court Judge P. Casey Pitts in the Northern District of California, came in a case brought in May by California residents Christine Wiley and Vishal Shah.

They alleged in a class-action complaint that they visited MyFitnessPal's website and were greeted with a cookie banner that gave them the option to reject tracking cookies by outside companies.

"Defendant’s website offers consumers a choice to browse without being tracked, followed, and targeted by third party data brokers and advertisers. But, defendant’s promises are outright lies, designed to lull users into a false sense of security," their complaint alleged.

They added that even after people attempt to opt out of tracking, MyFitnessPal "surreptitiously causes several third parties" including Meta, Google, ByteDance, Amazon and The Trade Desk "to place and/or transmit cookies that track users’ website browsing activities and eavesdrop on users’ private communications on the website."

Their complaint included claims for invasion of privacy and "intrusion upon seclusion" (meaning a highly offensive privacy violation), as well as claims that MyFitnessPal violated California wiretap laws.

MyFitnessPal urged Pitts to throw out the complaint. Among other arguments, the company said the complaint was too bare-boned to warrant further proceedings.

"Plaintiffs provide no details explaining what device and browser they were using to access the website; what their browser cookie/privacy settings were; what, if any, cookies allegedly were installed or fired after plaintiffs made their toggle selections; what 'personal information' or 'private communications' of plaintiffs actually were transmitted; and how they suffered any actual injury whatsoever as a result of their alleged browsing of a public website," the company wrote in its bid for a fast dismissal.

MyFitness also argued that Wiley and Shah "have no expectation of privacy in any of the information allegedly collected," including browsing history and page views.

Pitts ruled that the web users could proceed with claims for invasion of privacy and "intrusion upon seclusion."

MyFitnessPal "is correct that the type of information at issue, standing alone, may not involve information in which users have an unqualified expectation of privacy," he wrote.

But he added that in this case, MyFitnessPal "allegedly told plaintiffs that it would not collect information for advertising or analytics if they opted out of such collection."

He said a "reasonable visitor" to the company's website who opted out of tracking cookies would "reasonably expect" that MyFitnessPal wouldn't install those cookies on their devices.

Pitts dismissed other counts of the complaint, including the wiretapping claims, without prejudice -- meaning that Wiley and Shah can amend those claims and bring them again. He gave them until February 24 to do so.