Plaintiff lawyers across the country are finding ways to bring privacy lawsuits against businesses that operate online. A common theme in these lawsuits is to allege a business’s failure to adequately notify customers and obtain affirmative consent (also commonly known as an “opt-in”) prior to collecting and using a customer’s information in ways the customer does not know about. In a recent case in Florida, the plaintiff made similar allegations in the context of the defendant’s “live chat” feature on its online platform.
Online “live chat” features allow users to communicate with the site operator in real time. Oftentimes, these live chat conversations are recorded, stored, used, and disclosed by the operator for its business purposes, and these practices are described in the operator’s online privacy policy. In some, but not all cases, the live chat feature requests a user’s opt-in prior to or as a condition to the start of the conversation.
In the Florida case, the plaintiff alleged that the defendant’s live chat feature violated the Florida Security of Communications Act (“FSCA”) by the defendant’s failure to obtain the plaintiff’s prior consent with respect to recording the plaintiff’s “live chat” electronic communications. The FSCA prohibits the “interception of any wire, oral, or electronic communications” as well as the “use and disclosure of unlawfully intercepted communications,” in each case, without the prior consent of all parties to the communication. Under the FSCA, “intercept” includes the “acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”
While the case is currently pending and the defendant may have certain defenses to the FSCA claim, it demonstrates the risks associated with not including an opt-in in the context of an online operator’s recording of its users’ communications, such as via a live chat feature.
Violations of the FSCA may result in both criminal and civil penalties, including liquidated damages computed at a rate of $100 a day for each day of violation or $1,000, whichever is higher, punitive damages, and attorneys’ fees. An unlawful interception of a wire, oral, or electronic communication is a third-degree felony.
Privacy lawsuits under the FSCA and other similar privacy laws are arising more and more frequently. We strongly encourage you to review your current privacy practices (including whether you may be violating laws such as the FSCA) and contact our Gunster attorneys Stephanie Quinones and Gabriella Ledbetter for guidance on your privacy and other related matters.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 12 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach, and its headquarters in West Palm Beach. With more than 300 attorneys and consultants, and over 290 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com
