Well-Drafted Privacy Policy Saves the Day for GameStop

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Well-Drafted Privacy Policy Saves the Day for GameStop

Posted By Klein Moynihan Turco LLP

A Minnesota federal district court’s dismissed a website user’s lawsuit and prospective class action involving the privacy policy and information sharing practices of video game retailer and magazine publisher GameStop, Inc.

Plaintiff Matthew Carlsen subscribed to print and online versions of GameStop’s Game Informer Magazine.  The terms of service for Carlsen’s online subscription included Game Informer’s privacy policy, which provided that “Game Informer does not share personal information with anyone.”

Carlsen alleged that GameStop shared his personal information with Facebook by adding a Facebook Software Development Kit (“SDK”) to the source code on the Game Informer website.  According to Carlsen, the Facebook SDK:

  • allowed users to log into the Game Informer website using their Facebook accounts and use Facebook’s “Like,” “Share” and “Comment” functions; and
  • subsequently transmitted each such user’s unique Facebook ID and Game Informer browsing history to Facebook.

Last June, the district court granted GameStop’s motion to dismiss Carlsen’s claims for lack of subject-matter jurisdiction, finding that Carlsen lacked standing for failing to allege an injury-in-fact because the Game Informer privacy policy applied equally to both paid and non-paid Game Informer subscriptions.

On August 16, 2016, the Eight Circuit affirmed the district court’s dismissal, albeit for failure to state a claim rather than on standing grounds.  The Court held that Game Informer users’ Facebook IDs and browsing history did not constitute “personal information” because they:

  • did not appear in the privacy policy’s list of what personal information might include; and
  • were not specifically solicited by Game Informer or voluntarily submitted in response to such solicitation, as specified in the privacy policy.

As the above-referenced case demonstrates, it makes good business and legal sense to craft a privacy policy that is well-suited to the needs of your business and provides your users with all of the necessary information to make an informed decision regarding the disclosure of their personal information.  Further, once a privacy policy is put in place, it is imperative that you strictly adhere to the applicable terms and obtain appropriate user consent to any material changes.  Failure to adhere to privacy policy terms could expose your business to significant liability, including regulatory action and private litigation.

Read full article and learn more about Privacy Policy here.

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Disclaimer:  This article is provided for informational purposes only. It’s not legal advice, and no attorney-client relationship is created. Neither the author nor FTC Guardian, Inc. is endorsed by the Federal Trade Commission.


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