1 Bender on Privacy and Data Protection § 23.21 (2020)
Article 1, Section 1 of the California Constitution provides:
“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
In a suit comprising several causes, plaintiff used this provision as the basis for a claim of invasion of privacy.
1 Defendant sold music CDs that, when inserted into a PC, allegedly activated access to a website and deep-linked to a web page on a server that placed a cookie on the PC. The Complaint alleged that the user was not directly notified that the cookie was deposited (although the server’s privacy statement disclosed this fact). The Complaint further alleged that, to download music from the CD the user had to furnish personal information, and that defendant failed to disclose that this information would be shared with third parties.
2 Plaintiff asserted that this conduct violated plaintiff’s inalienable right to privacy under
Art. 1, § 1 of the California Constitution. Among the elements of relief sought by plaintiff were an order (1) prohibiting insertion of cookies on the PCs of CD purchasers (unless purchasers had the opportunity to decline them), and (2) precluding defendant from obtaining information from consumers absent disclosure of all purposes for which the information would be used and requiring opt-in. The suit was settled
3 by means of an agreement requiring defendants to give notice to purchasers of their practices regarding information collection, and to cease requiring consumers to disclose their personal information in order to enjoy the music on a CD.
Footnotes — § 23.21:
1 DeLise v. Fahrenheit Entertainment Inc. (Cal. Super Ct., Marin Co. Civ. No. 014297, filed 6 Sept. 2001),
available at http://www.techfirm.com/mccomp.pdf.
2 That information was also included in the server’s privacy notice, which plaintiff alleged contained misleading statements.
3 Press Release, SunnComm, Inc.,
Sunncomm and Music City Records Agree to Resolve Consumer Music Cloqueing Law Suit by Providing Better Notice and Enhancing Consumer Privacy (Feb. 22, 2002),
at http://www.techfirm.com/sunnsett.pdf.