Ius Omnibus v Flo Health, Inc.
Ius filed a class action against the American company Flo Health, Inc., which developed and makes available the smartphone application called “Flo Ovulation and Period Tracker”, in the Judicial Court of the District of Lisbon in April 2023.
Between June 30, 2016 and February 23, 2019, Flo Health shared highly sensitive personal information of Portuguese users of the application, relating to their menstruation, health and sex life, registered by users in the application. Flo Health shared this information with companies engaged in data analytics and targeted advertisement activities, such as Facebook and Google. It did so without obtaining users’ consent, for commercial purposes, and in violation of its assurance that this data would not be shared with third parties.
This practice was detected by the American authorities, which forced Flo Health to end the non-consented sharing of personal information and notify all users.
Ius believes Flo Health violated the fundamental rights of Portuguese consumers, such as the right to privacy and intimacy of private life. It has also violated the Civil Code, the Unfair Commercial Practices Law and the General Data Protection Regulation.
If this claim is successful, Flo Health will be ordered to compensate the consumers represented in the action for the damage caused by these illegal practices.
What is the object of this action?
This is a popular action brought by Ius Omnibus aimed at protecting the privacy, personal data, consumer relations and homogeneous individual interests of Portuguese consumers.
It is an action filed under articles 52(3) and 60(3) of the Constitution of the Portuguese Republic, the Popular Action Law (Law no. 83/95) and articles 31 and 546(2) of the Code of Civil Procedure, for practices that violate articles 26(1), 35(4) and 60(1) of the Constitution of the Portuguese Republic, articles 70(1), 80(1) of the Civil Code, articles 5(1), 7(a) and (b) and 9(1)(a) and (b) of the Unfair Commercial Practices Law and articles 5(1)(a), (b) and (f), 6(1)(a), 7(2), 9(1) and (2), 13, 25, 32(1)(a) and (b) of the General Data Protection Regulation.
What are the unlawful behaviors of Flo Health?
This case concerns the unauthorized sharing, for commercial purposes, of highly sensitive information about users of the application, relating to their menstruation and their health and sex life, which Flo Health had undertaken to keep confidential, with companies engaged in data analytics and online advertising activities, such as Facebook and Google.
Who is represented in this action?
All consumers residing in Portugal who, between June 30, 2016 and February 23, 2019, downloaded and used the application developed by Flo Health called “Flo Ovulation and Period Tracker“, for iOS or Android devices, are represented in this class action.
Consumers concerned do not have to do anything to be represented and to be entitled to compensation in case the class action is successful (they only have to claim their compensation at that stage).
Any consumer who is part of the group described above but does not wish to be represented in this action may exercise the right to opt-out by informing the Court of this intention. The represented consumers may also decide to intervene in the action, in support of Ius Omnibus, within a period to be set by the Court, according to an announcement to be published in a national newspaper for this purpose.
What is Ius Omnibus seeking?
Ius is asking the Court to:
a) declare that, between June 30, 2016 and February 23, 2019, Flo Health violated the interests protected by the legal provisions identified above and, as a result, caused damage to the consumers represented in the action;
b) order Flo Health to compensate the represented consumers for the damage caused to them; and
c) order Flo Health to publish a summary of the final decision in two national newspapers.
How does the popular action and consumers compensation work?
The mass consumer compensation mechanism used here, provided for in the Portuguese rules of class action, has never been tested in practice until the very last step. However, according to the law, the following will happen if the court finds in favour of Ius Omnibus:
i) the Court will set the overall amount of damages to be paid by Google to consumers, to be deposited in a compensation fund;
ii) the Court will designate an entity responsible for managing the compensation fund, including the receipt, management and payment of compensation to injured consumers;
iii) the Court will set a deadline for consumers to claim their share of the compensation and this information will be publicized in various ways;
iv) consumers will have to contact the entity that manages the compensation fund, as well as submit the court-decided evidence and the respective payment instructions, in order to receive their share of the compensation;
v) at the end of the legally established period, if a part remains of the global compensation that was not requested by consumers:
(i) that amount will be used to pay the expenses incurred by Ius Omnibus as a result of the action; and
(ii) what is left will be handed over to the Ministry of Justice, to be used to support access to law and justice, including the promotion of popular actions.
Do consumers need to contact the Court or Ius Omnibus?
Consumers do not have to contact the Court or Ius Omnibus, nonetheless it may be in their interest to do so.
All app users residing in Portugal who, between June 30, 2016 and February 23, 2019, downloaded and used the application “Flo Ovulation and Period Tracker“, for iOS or Android devices, are automatically represented in this popular action.
If they do not wish to be represented, the represented consumers will have to exercise the right to opt-out.
If they do want to be represented, they do not need to do anything further, for now, to be entitled to damages if Ius Omnibus wins this action.
At the end of the case, if successful, they will need to contact the court-appointed entity to claim their compensation.
However, if they wish to intervene in the action in support of Ius Omnibus, they may do so within the time limit that will be set by the Court, as per an announcement to be published in a national newspaper for this purpose.
All consumers represented in this action are invited to contact Ius Omnibus, so that their data can be registered, and they can be informed by Ius Omnibus of all developments in the case, ensuring that they do not miss the opportunity to claim their compensation when that moment arrives.
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