The Privacy Class Action Review - 2023 - Report - Page 35
Privacy Act, the Computer Fraud and Abuse Act and the BIPA. The defendants filed
three separate motions to dismiss pursuant to Rule 12(b)(2) and 12(b)(6). The court
granted the motions. First, the defendants Naver and Naver Cloud argued that the
plaintiffs' claims against them should be dismissed because the two "South Korean
companies do not have sufficient contacts with California to establish personal
jurisdiction.” Id. at *10.
The court agreed that the plaintiffs failed to allege facts that showed that Naver or
Naver Cloud engaged in intentional acts "expressly aimed" at the forum state. Id. The
court also determined that the plaintiffs had not plead sufficient facts to establish that
the Foreign LINE defendants purposefully directed their activities toward California or
purposefully availed themselves of the privilege of conducting activities in California. Id.
at *15.
Further, the defendants argued that the plaintiffs' intrusion upon seclusion and California
constitutional privacy claims should be dismissed because the “plaintiffs had no
reasonable expectation of privacy in their facial image when using a selfie app to modify
their image.” Id. at *16. The court found that the plaintiffs plausibly alleged a cognizable
privacy interest in their facial biometric information, but their allegations for intrusion
upon seclusion or invasion of privacy were not sufficient to state a claim. The court also
ruled that the plaintiffs failed to show that the defendants "maliciously and without the
consent of all parties to the communication, intercepted, received, or assisted in
intercepting or receiving a communication transmitted between" cellular devices as
required to show maliciousness under the California Invasion of Privacy Act. Finally, the
court opined that the plaintiffs had not alleged maliciousness, and failed to state a viable
claim under the Section. For these reasons, the court granted the defendants’ motions
to dismiss.
In Renderos, et al. v. Clearview AI, Inc., Case No. RG-21096895 (Cal. Super. Ct. Nov.
18, 2022), plaintiffs filed a class action alleging that the defendant illegally scoured the
internet for photographs and stored them in a for-purchase database after it subjected
them to biometric analysis in violation of the California constitution, California’s
consumer protection and privacy laws, and California common law.
The defendant moved to dismiss and the court denied the motion. The defendant
argued its actions constituted speech protected by the First Amendment. The court
rejected the defendant’s argument that its biometric analysis and database maintenance
containing photographs were speech protected by the First Amendment. The court
reasoned that there was no First Amendment right to appropriate a photograph or
likeness of another person and then take that information to use it for a business which
makes a profit without consent. The court also ruled that the plaintiffs sufficiently stated
claims for which relief could be granted by asserting that the defendant extracted the
plaintiffs’ face prints, did biometric analysis, maintained the analysis in a database, and
sold the information for profit. The court therefore denied the defendant’s motion to
dismiss.
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Duane Morris Privacy Class Action Review – 2023
