Our technology and litigation teams have seen an increase in lawsuits against companies for the use of cookies and other web-tracking technologies. These technologies—for example, Hubspot, Google Analytics, and Hotjar—are often used for analytics and marketing. The lawsuits typically allege that plaintiff did not consent to the use of such technologies and that tracking their usage violates state wiretapping or other similar laws. The law is still very unsettled in this area, with various decisions both for and against plaintiffs. Consumer-side plaintiffs’ firms are seeking to capitalize on the uncertainty, bringing putative class action lawsuits with the goal of a nuisance settlement payment (a similar scheme involving purported ADA violations by websites has also been active for several years, as the Wall Street Journal has documented).

Unfortunately, given how active plaintiffs’ firms have been in this area, any use of online tracking technologies presents at least some risk that your company could be sued. Despite the litigation risk, many companies choose to use these technologies, which are vitally important to marketing and online presence.

Some steps that companies can take to reduce the risk of being targeted by these lawsuits include:

• Opt-In Cookie Banner—Use an opt-in cookie banner that does not allow non-essential cookies to be placed until after the user consents.
• Accurate Privacy Disclosures—Ensure your website privacy and cookies policy (or other similar disclosure) accurately describes the use of tracking technologies and how information is shared with third parties.
• Prominent Privacy Disclosures—Display the privacy related policies prominently to visitors, with a different-colored hyperlink in the cookie banner and at the bottom of every webpage.
• Routine Review—Periodically (at least annually) review the website’s use of cookies and tracking technologies to ensure the cookie banner is working and the privacy disclosures are correct.
• Change Management—Create and follow a standard process for adding and removing tracking technologies from the website.
• Vendor Management—Where possible, maintain contracts with any third-party providers of tracking technologies, limiting the use of any data collected.

If you need help assessing your website’s use of tracking technologies or have received a demand letter or formal complaint, our attorneys can help.