Blizzard Entertainment Inc. ("Blizzard"), the owner and operator of worldofwarcraft.com, was brought into the world of class action data privacy litigation recently when a class of California residents who visited the site filed suit against it and its vendor Mouseflow, Inc. ("Mouseflow") based on allegations of illegal and surreptitious wiretapping. In their complaint, the Plaintiffs alleged that Mouseflow provides a "Session Replay" tool that records a website visitor's interactions on a website, including the user's keystrokes, mouse clicks, mouse movements, and scrolls. Mouseflow also allegedly tracks other user information such as device and location. According to Plaintiffs, Mouseflow's Javascript is installed on worldofwarcraft.com pursuant to a voluntary partnership with Blizzard, and Plaintiffs' information is captured and sent to Blizzard by way of Mouseflow's program. Plaintiffs' lawsuit claims that Blizzard and Mouseflow's data collection amounts to a form of wiretapping that violates the California Invasion of Privacy Act (CIPA).
While the Complaint does not contain any factual allegations establishing actual damages, CIPA provides a statutory claim of $5,000 per violation. Accordingly, Plaintiffs allege that the total statutory damages for their class exceeds $5 million.
Mouseflow purports to be a major corporation with more than 165,000 clients. Importantly, however, size of a corporate partner does not guarantee their compliance with data privacy laws. It is incumbent on all organizations to review not only their own practices and policies for compliance, but also those of their vendors and corporate partners alike. Contracts with these vendors and corporate partners should expressly articulate the responsibilities of the parties with respect to data privacy generally and compliance with applicable data privacy laws specifically. As always, we recommend that organizations consult with counsel proactively before implementing a new program involving the collection and use of customer data.
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