A recent series of articles by the International Association of Privacy Professionals discusses a trend in privacy litigation focused on breach of contract and breach of warranty claims.

Practical Takeaways

• Courts are increasingly looking at website privacy policies, terms of use, privacy notices, and other statements from organizations and assessing breach of contract and warranty claims when individuals allege businesses failed to uphold their stated (or unstated) data protection promises (or obligations).
• To avoid such claims, businesses should review their data privacy and security policies and public statements to ensure they accurately reflect their data protection practices, invest in robust security measures, and conduct regular audits to maintain compliance.

Privacy policies are no longer just formalities; they can become binding commitments. Courts are scrutinizing these communications to determine whether businesses are upholding their promises regarding data protection. Any discrepancies between stated policies and actual practices can lead to breach of contract claims. In some cases, similar obligations can be implied through behavior or other circumstances and create a contract.

There are several ways these types of claims arise. The following outlines the concepts that plaintiffs are asserting:

• Breach of Express Contract: These claims arise when a plaintiff alleges a business failed to adhere to the specific terms outlined in their privacy policies. For example, if a company promises to “never” share user data with third parties but does so.
• Breach of Implied Contract: Even in the absence of explicit terms, businesses can face claims based on implied contracts. This occurs when there is an expectation of privacy and/or security based on the nature of the relationship between the business and its customers.
• Breach of Express Warranty: Companies that make specific assurances about the security and confidentiality of user data can be held liable if they fail to meet these assurances.
• Breach of Implied Warranty: These claims are based on the expectation that a company’s data protection measures will meet certain standards of quality and reliability.

How to avoid being a target:

1. Ensure Accuracy in Privacy Policies, Notices, Terms: Even if a business takes the steps described below and others to strengthen its data privacy and security safeguards, those efforts still may be insufficient to support strong statements concerning such safeguards made in policies, notices, and terms. Accordingly, businesses should carefully review and scrutinize their privacy policies, notices, terms, and conditions for collecting, processing, and safeguarding personal information. This effort should involve the drafters of those communications working with IT, legal, marketing, and other departments to ensure the communications are clear, accurate, and reflective of their actual data protection practices.
2. Assess Privacy and Security Expectations and Obligations. As noted above, breach of contract claims may not always arise from express contract terms. Businesses should be aware of circumstances that might suggest an agreement with customers concerning their personal information and then work to address the contours of that promise.
3. Strengthen Data Privacy and Security Protections. A business may be comfortable with its public privacy policies and notices, feel that it has satisfied implied obligations, but still face breach of contract or warranty claims. In that case, having a mature and documented data privacy and security program can go a long way toward strengthening the business’s defensible position. Such a program includes adopting comprehensive privacy and security practices and regularly updating them to address new threats. At a minimum, the program should comply with applicable regulatory obligations, as well as industry guidelines. The business should regularly review the program, its practices, changes in service, etc., as well as publicly stated policies and notices, as well as customer agreements, to ensure that data protection measures align with stated policies.