Augmented Reality Makeup Tools Serve as Foundation for BIPA Class Actions | Arent Fox

What to Know

Class motion lawsuits have been filed in Illinois state court docket, alleging that cosmetics firm, Mary Kay, and wonder retailer, Ulta, violated Illinois’ Biometric Information Privacy Act (“BIPA”).
The complaints allege that the businesses collected customers’ facial geometry with out acquiring knowledgeable consent.

The Alleged Biometric Data Collection

BIPA, the often used foundation for class motion lawsuits in reference to facial recognition, fingerprint, and different applied sciences is as soon as once more serving as the idea for two not too long ago filed fits. The complaints declare that Mary Kay and Ulta, two magnificence manufacturers, scanned and picked up customers’ geometric facial knowledge with out consent by means of the businesses’ respective on-line augmented actuality instruments. Specifically, Mary Kay’s “MirrorMe” program and Ulta’s “Foundation Shade Matcher,” “GLAMlab®,” and “Skin Analysis” instruments supply customers a strategy to just about to “attempt on” completely different cosmetics and wonder merchandise prior to buy. The instruments allegedly perform by scanning photographs and movies of customers’ faces and just about making use of specific merchandise to the scanned photographs and movies. While each web sites host a privateness coverage, BIPA requires very particular discover and consent procedures previous to assortment. The two lawsuits allege that such consent was not obtained.

The Class Actions

Namely, for knowledgeable consent, BIPA requires enterprise that acquire biometric info (as the time period is outlined beneath the legislation) to offer written discover that (i) biometric knowledge is being collected and saved; (ii) the particular functions for the gathering, storage, and use of the knowledge; and (iii) the size of time for which the biometric knowledge is being saved. A shopper should then present written consent for the gathering, storage, and use of the person’s biometric knowledge. The complaints allege that the businesses didn’t fulfill any of the BIPA consent necessities. Rather, the businesses allegedly failed to tell customers in regards to the specific functions for which their knowledge is collected, nor the size of time this knowledge is saved, and didn’t promulgate a publicly accessible coverage relating to their biometric knowledge assortment protocols. The complainants search class motion certification, statutory damages, injunctive reduction, and attorneys’ charges.


As now we have beforehand reported, corporations contemplating using biometric applied sciences have to be ready for a continued rise of sophistication actions on this area. Biometric knowledge is especially delicate and has accordingly attracted the eye of sophistication motion litigants and regulators alike. As new privateness legal guidelines incorporate provisions defending biometric privateness, the claims by customers and regulators are more likely to improve. This case serves as reminder to assessment assortment practices tied to assortment of biometric knowledge for compliance with BIPA and related requirements.

Our group is constant to watch instances on this area.

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About the Author: Jessica