Today I’m going to offer an update on “Pixel” litigation. This is a rapidly evolving area of the law, and I want to make sure we’re all up to speed.
When I first talked about Pixel litigation, a lot of the cases out there involved Meta Pixel, which is a snippet of code made available by Meta meant to collect certain information about a website user. Other companies, such as Google, have similar technologies.
Generally, they’re referred to as “tracking technologies,” because they track some information about a website user. Many class-action suits were filed against companies, including healthcare providers, because they used this technology on their websites. To be clear, those technologies were, until relatively recently, used in a great many websites.
So, how has the legal landscape changed? First, many of the first wave of class-actions against healthcare providers centering on Meta and Google tracking technologies have settled or are in the process of settling. This also means there are not a lot of decisions regarding these technologies on the merits.
Likely as a result of these lawsuits, insurers have been sharply limiting or excluding coverage entirely for these types of claims. That means a healthcare provider might have little coverage or no coverage for these types of claims.
In addition, many healthcare providers have responded by updating their privacy policies and changing whether and how they use any tracking technologies.
For example, many now use a consent banner, which states something along the lines of the notion that no cookies or tracking technologies (except for those needed for the website to function) will deploy unless the user consents.
How is this impacting the legal landscape? We’re seeing fewer class-action suits, but we’re seeing MANY demand letters being sent to healthcare providers about their websites. These demand letters raise many of the same allegations that were raised in the class-actions, and also assert new claims. For instance, they might claim that a consent banner did not function properly, and trackers turned on without the user’s consent. There are law firms that specialize in sending these demand letters, and providers can be hit with multiple demands from different firms and claimants.
For websites with arbitration requirements, we’re seeing law firms accumulate dozens of individual claimants. Depending on the number, they might not rise to the level of a “mass” arbitration, but there are enough claimants such that the arbitration fees alone could be prohibitive.
Given all this, what is a healthcare provider to do? Healthcare providers should check their websites. Are tracking technologies being used? Is there a consent banner? If so, is the banner functioning properly? And it’s always a good idea to review your privacy policy and make sure it’s updated to address this brave new world we’re in.
Of course, before taking any action, you should consult with a lawyer who specializes in privacy issues and discuss what options work for you.
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