August 10, 2010
Richard Raysman and Peter Brown write in today's NYLJ that the answer to that question remains unsettled. The issue was raised in a recent case involving a Cleveland newspaper that reported on a judge's anonymous comments (about pending cases) to its website. Here's a taste of Raysman and Brown's article:
The law surrounding the contractual nature of privacy policies remains unsettled: Are they merely broad statements of company policy or enforceable contracts?
Some courts have held that general statements like privacy policies are unilateral corporate statements that are not sufficiently definite to form a contract. Others have found privacy policies can form a contract, particularly when parties claiming a breach have alleged that they read and subsequently relied on the policy prior to transacting business with the site operator. See e.g., Meyer v. Christie, 2007 WL 3120695 (D. Kan. Oct. 24, 2007).
Regardless, any successful claim for breach of contract requires a showing of compensable loss arising out of the alleged breach, beyond a generalized claim of loss of privacy.
However, the court dismissed the plaintiff's contract claims, with leave to amend, because the plaintiff failed to plead any loss stemming from the alleged breach.
They also discuss the FTC’s “aggressive stance” with regard to data privacy. Interesting issue; the article is worth a read.
Brown & Raysman, Contractual Nature of Online Policies Remains Unsettled, NYLJ (8/10/10).
[Meredith R. Miller]
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