Published on July 8th, 2022 📆 | 6903 Views ⚑
0As Virtual Try-On Fashion Technology Grows, So Do Legal Risks
Biometric privacy lawsuits against retailers that allow online shoppers to virtually try on glasses and makeup are posing novel legal issues and casting uncertainty on the technologyâs viability in the long run.
Companies must take heed of the legal, regulatory, and reputational risks associated with virtual try-on technology as privacy litigation climbs, attorneys warn.
Cases are already pending against cosmetics conglomerate
Some retailers offered virtual try-on tools before the Covid-19 pandemic, but widespread adoption took off as stores shuttered and people stayed at home in the spring of 2020, said David Oberly, a senior associate at Squire Patton Boggs in Cincinnati.
That âexplosionâ in try-on technology coincided with an upswing in related litigation in 2021 and 2022, said Oberly, who has defended companies in such lawsuits.
âIn terms of figuring out how these cases will play out, thereâs no great answer,â Oberly said. âThese cases are still being filed but theyâre being fought aggressively by defendants.â
Sunski, LâOrĂ©al, and EstĂ©e Lauder didnât respond to requests for comment about their use of virtual try-on technology. Attorneys representing EstĂ©e Lauder and LVMH didnât respond to requests for comment about the pending litigation.
Warby Parkerâs tool looks at âmultiple data points on the userâs faceâ while users interact with it, but it doesnât store any face scan data or share it with any third parties, according to the companyâs App Store description.
Litigation Landscape
Lawsuits against companies that offer virtual try-on technology are largely focused on eyewear and makeup retailers despite the fact that some companies, including
That may be because plaintiffs often allege violations under Illinoisâ Biometric Information Privacy Act by saying companies are unlawfully collecting âscans of face geometry,â a term used in the statuteâs definition of biometric identifier, he said.
Courts are currently grappling with whether applications of such technology violate BIPA, which safeguards Illinois residentsâ biometric privacy rights and requires companies to seek written consent before collecting data such as iris and fingerprint scans.
While most federal lawsuits have been filed in Illinois, several are pending in the Southern District of New York and the Northern District of California.
There are currently no pending lawsuits in federal court against Perfect Corp., which provides virtual try-on capabilities to companies including
Legal Risks
While Illinoisâ biometric privacy law has been a vehicle for many plaintiffs to bring lawsuits related to virtual try-on technology, itâs not a prerequisite for litigation, said David Straite, a partner at DiCello Levitt Gutzler in New York who primarily represents consumers.
âCompanies are playing with fireâthey have this false sense of security that if theyâre not in Illinois, theyâre fine,â Straite said. âBut you donât need a biometric statute to bring unfair competition or invasion of privacy claims.â
Straite represents plaintiffs in virtual try-on lawsuits against companies but said he couldnât comment on the pending litigation.
Though BIPA doesnât prohibit the use of virtual try-on technology, many companies are providing such tools for consumers without giving proper notice or obtaining proper consent, Straite said. Other businesses lack accurate privacy policies.
Still, litigation related to the technology is novel, and itâs unclear how the Illinois court system will come down on the technology.
âThe virtual try-on cases in Illinois are still in their early stages and there are very few substantive rulings,â said Nicola Menaldo, a partner at Perkins Coie LLP in Seattle. âCourts have not yet adjudicated core issues like whether the data implicates biometric privacy law in Illinois or what kind of notice or consent is required.â
Best Practices
While legal risk for use of this technology is highest in Illinois, companies everywhere should think about how theyâll issue notices related to try-on technology and update privacy policies if needed, said Carolyn Wimbly Martin, senior counsel at Lutzker & Lutzker LLP in Washington, D.C.
âIf companies are going to be storing data related to these tools, they need to map out the risks of a data breach and think about how theyâre going to protect it,â Martin said. âThere are bad actors who find this to be a very valuable commodity.â
BIPA will remain an attractive avenue for such litigation because of its potential for large statutory damages, but companies should keep an eye on other state biometric privacy proposals as legislators introduce bills in this space, Menaldo said. Differing definitions of âbiometricâ may arise in each jurisdiction, making litigation more complicated down the road, she said.
Despite legal challenges, the technology is likely to continue growing in popularity because of its business utility and ease of use, Oberly said. Some companies may choose to offer the tech in all U.S. jurisdictions except Illinois to avoid the wave of litigationâbut retailers are very unlikely to shy away entirely, he said.
âThese lawsuits are giving companies heartburn,â Oberly said. âTheyâre being more cautious than they have been in the past.â
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