A new class action lawsuit accuses jewelry giant Pandora of violating Illinois’ biometrics privacy law by allegedly improperly scanning the faces of customers as they use Pandora's virtual Try-on tool.
Illinois resident Diane Gielow filed a new class-action lawsuit on behalf of herself and others against Pandora, the third largest retailer of jewelry in the U.S. According to the complaint filed in Cook County Circuit Court on Nov. 15, Pandora is accused of violating the Illinois Biometric Information Privacy Act (BIPA) in the way it operates a customer tool on its website called "Virtual Try-on", first introduced around November, 2020.
When looking at jewelry on Pandora's website, customers have the option to "try on" jewelry with a tag that reads, "Try It On". Customers are directed through a QR code to scan on their smartphone which directs them to a third party website owned by yRuler, Inc.:tangiblee.com where they are prompted to upload a photo of their face to the website. The tool then collects and analyzes facial geometry data.
Carl Malmstrom
| Wolf Haldenstein
Once uploaded, customers can then model Pandora jewelry tagged as "Try It On" using a feature mode called "On Me."
The suit contends that Pandora's failure to obtain prior express consent, or provide BIPA law notices about why Pandora needs to scan their faces and the future use of the stored facial scans by Pandora, amounts to multiple violations of the BIPA law.
When the law was enacted in 2008, Illinois lawmakers said, because biometrics are biologically unique to each individual, if security is compromised, an individual has no recourse, and is now at a heightened risk for identify theft, and is more likely to withdraw their business from companies using biometrics to encourage purchases.
As a result, Illinois enacted BIPA providing that private companies, such as Pandora, may not obtain or possess an individual's biometrics without obtaining express prior consent and informing them in writing of the intended term and use of the data collected.
BIPA further requires that companies with biometric data, publish annual schedules on how long they retain and plan to destroy biometric data.
Pandora is accused of directly violating BIPA for its alleged failure to obtain informed consent from users. The suit contends that users are allegedly not notified their biometric data would be collected and shared with third parties. It is not known how many other people may be included in the class action. The complaint indicates there could be tens of thousands of Illinois residents impacted, including Gielow.
Like Pandora, under BIPA, these lawsuits have become part of a growing trend in Illinois targeting large and small companies alike, such as Google, SoundHound, Lincoln Insurance, Snapchat and Facebook, among many others. These lawsuits have resulted in settlements over the last year collectively amounting to more than $1 billion dollars, according to some estimates. Just this past August, a similar class action lawsuit targeted mega fashion giant Christian Dior for violating biometric privacy law with its virtual try-on feature online.
This recent wave of BIPA related lawsuits have impacted companies that use facial scanning or facial recognition technology. These lawsuits carry the potential of massive payouts, as plaintiffs can demand damages of up to $5,000 per violation. If these cases are tried, damages could potentially amount to hundreds of millions of dollars for these type of cases. As a result, many companies have chosen to settle out of court.
Although businesses in Illinois have called for reform to discuss BIPA's potential impact on the economy, the Democratic supermajority in the Illinois General Assembly has refused to entertain such discussion. Illinois Democrats are heavily financially backed by donations from trial lawyers.
Plaintiff demands a trial by jury and is seeking damages of $1,000 to $5,000 per violation, as allowed by the BIPA law, plus attorney feels and court costs.
Plaintiffs have been represented by attorneys Carl V. Malmstrom and Benjamin Y. Kaufman, of Wolf Haldenstein Adler Freeman & Hertz, of Chicago and New York, and Don Bivens, of Don Bivens PLLC, of Scottsdale, Arizona.