"Cookies" used to mean only a dessert. A "thread" used to refer only to a thin sewing yarn. Like with the technology industry, the legal industry often assigns significant meaning to a more common word. Such is the case with the term "standing," a term that tech companies are learning to love as a significant defense to litigation, rather than merely a word for getting up or staying in place.
While admittedly a complex topic, the U.S. Supreme Court once stated: "In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Standing is not a topic taken lightly by litigants or courts, because it invokes the federal government’s power to even hear a case. It affects everything from taxpayers to prisoners to wildlife conservationists. Standing has even been a central issue in the challenges to California’s Proposition 8 and the Defense of Marriage Act and whether DNA is patentable (AMP v. Myriad). So how does this well-established legal concept affect social media?
Two litigation examples can help answer that question. Readers of the SoMe blog may already know that, in August 2012, Google agreed to pay a $22.5 million civil penalty as part of an agreement with the Federal Trade Commission arising from accusations that it misrepresented to users of Apple Inc.’s Safari Internet browser that it would not place tracking cookies or serve targeted ads to those users. As Google’s attorneys noted in a recent filing, "[w]henever a story about a snafu at a popular technology company appears in the press, lawsuits are filed en masse." Twenty-four lawsuits against Google have been consolidated in the United States District Court, District of Delaware. The suits allege that Google’s actions violated multiple privacy laws. On January 22, 2013, Google asked the U.S. District Court, District of Delaware, to dismiss the action because "Google’s alleged placement of cookies on Plaintiffs’ browsers did not cause them any cognizable injury." According to Google, Plaintiffs lack standing because, put simply: no harm, no foul.
Regardless of whether Google’s and Blizzard’s standing defenses ultimately succeed, we can expect to see many other cases examining plaintiffs’ standing to assert claims against new media or technology companies. Tech companies will likely embrace these standing arguments as a first line of defense against the numerous lawsuits that follow a well-publicized "snafu."