November 30, 2022

As we mentioned in a recent webcast, there has been an increase in litigation centered on companies’ use of the Meta Pixel, which is a tracking code that allows users’ online activity to be shared with Facebook. Recent litigation has alleged that the use of Meta Pixel with online videos violates the Video Privacy Protection Act (VPPA). An even more recent variant of the Meta Pixel litigation alleges that Meta Pixel’s use constitutes wiretapping under federal and state wiretapping laws. These recent cases have focused on hospitals that have enabled Meta Pixel for patient portals, thereby allegedly allowing Facebook to eavesdrop and/or eavesdrop on private communications between doctors and patients, allegedly in violation of HIPAA, the privacy laws of state health care and a number of other state privacy laws. in addition to wiretapping laws.

A recently presented case, Stewart v. Advocate Aurora Health, Inc. (ND Ill), is a good example of this recent trend in Meta Pixel litigation. The suit alleges that Aurora set up Meta Pixel to track patient communications through its patient portal, allowing Meta to capture real-time medical information from Aurora patients. The complaint alleges that Aurora recently disclosed the sharing with Meta Pixel under applicable data breach notification laws, which the plaintiff alleges is evidence that Aurora and Meta had not obtained the patient consent to the alleged interception/eavesdropping of communications.

The suit alleges claims against Aurora and Facebook under the Electronic Communications Privacy Act, which provides liquidated damages of up to $10,000 per person for wiretapping violations, the Stored Communications Act (SCA), as well as claims of the law of the state of Illinois for breach of contract, breach. of the implied duty of confidentiality and the invasion of privacy. There have been at least half a dozen similar class action lawsuits filed in the past two months against hospitals and Meta under similar theories of liability, and plaintiff attorneys are likely to file more in the coming months. In fact, a recent study by marking claims that one-third of the 100 largest US hospitals share patient PHI through their websites with Meta.

The recent variant of the Meta Pixel litigation combines allegations about the use of Meta Pixel, common in recent VPPA cases, with recent favorable rulings in the third i Ninth Circuits find that tools like Meta Pixel intercept communications under state wiretapping laws. The litigation against Aurora raises a number of thorny legal issues, including whether Meta’s terms of service exempt Meta from liability for the website operator’s Meta Pixel settings, to what extent consent can be inferred of the patient based on website disclosures and settlement availability. damages in the absence of actual damages under the SCA. In the short term, however, plaintiff attorneys will likely continue to pursue wiretapping claims against hospitals that allow Meta Pixel to operate on patient portals. Hospitals would be wise to review their use of tools such as Meta Pixel and consider changes to their privacy policy and/or obtain formal patient consent.

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