Google recently scored a big victory in its battle against claims that it is illegally intercepting and scanning the content of emails in order to provide personalized advertisements to Gmail users. Plaintiffs in the various lawsuits – which were consolidated for pretrial purposes in the Northern District of California – sought certification of classes including “education” users, who use Gmail provided by their school, as well as other direct and indirect users (including individuals who do not have Gmail accounts, but send emails to Gmail users).
In its order denying plaintiffs’ motion for class certification with prejudice, the court agreed with Google that the issue of plaintiffs’ express or implied consent to Google’s interception practices defeated the predominance requirement of Rule 23(b)(3). As to the “education” users, the court found that “express” consent could not be decided on a classwide basis because Google allows educational institutions to provide end users vastly different disclosures, some of which might be sufficiently clear for a finding of consent while others might not. As to the other users, the court found that “implied” consent could not be decided on a classwide basis because it was a question of fact requiring examination of all the surrounding circumstances. The court noted that email users could have learned of Google’s interception practices through a panoply of sources (including various news reports) beyond Google’s terms of service and privacy policies. The Plaintiffs are currently seeking to appeal the court’s decision to the 9th Circuit Court of Appeals under Federal Rule of Civil Procedure 23(f).
Even if the Ninth Circuit declines to hear the appeal, the allegations against Google could proceed as individual lawsuits or potentially be re-filed with different class allegations. Any company or organization engaged in targeted online advertising, data mining, or consumer-facing big data analytics should keep any eye on this case when considering how to gather and use consumer data and how consumers interact with so-called “freemium” online services.