Private Right of Actions is where businesses can get into serious legal trouble if they are not following guidance and best practices for privacy laws. What we’ve seen just in the last year is nothing short of amazing with privacy litigation around CIPA and VPPA claims from California consumers. This is on top of the California Privacy Protection Authority enforcing the CCPA/CPRA. So yes it’s a landmine avoidance game and if you are not using a cookie consent banner you should set one up right away with our help to avoid future litigation.
The California Privacy Rights Act (CPRA), which amends and expands the California Consumer Privacy Act (CCPA), introduces significant enhancements to consumer data privacy protections. Effective January 1, 2023, with enforcement beginning July 1, 2023, the CPRA strengthens consumer rights and imposes stricter obligations on businesses. One critical aspect is the private right of action, which empowers California residents to seek legal remedies for specific data privacy violations. This guide explores the CPRA’s private right of action, its implications for businesses, and strategies for compliance, optimized for clarity and regulatory adherence.
What is the CPRA Private Right of Action?
The CPRA retains and clarifies the private right of action introduced under the CCPA, allowing consumers to file lawsuits against businesses for certain violations of their data privacy rights. Unlike most CPRA provisions, which are enforced by the California Attorney General or the California Privacy Protection Agency (CPPA), the private right of action enables individuals to directly seek redress in court without relying on regulatory enforcement.
This mechanism applies specifically to breaches involving sensitive personal information, such as Social Security numbers, financial account details, or precise geolocation data, where the business fails to implement reasonable security measures, resulting in unauthorized access, disclosure, or theft.
Scope and Conditions of the Private Right of Action
The CPRA private right of action is narrowly defined but carries significant consequences for non-compliant businesses. Key aspects include:
- Applicable Violations: Consumers can sue for data breaches caused by a business’s failure to maintain reasonable security procedures and practices to protect personal information, as required under California Civil Code § 1798.150.
- Covered Data: The right applies to personal information defined under California’s data breach notification law (Cal. Civ. Code § 1798.81.5), including:
- Social Security numbers
- Driver’s license or California ID numbers
- Financial account or credit/debit card numbers (with access codes)
- Medical or health insurance information
- Biometric data (e.g., fingerprints, facial recognition data)
- Consumer Remedies: Affected consumers may seek:
- Statutory Damages: Between $100 and $750 per consumer per incident, or actual damages, whichever is greater.
- Injunctive or Declaratory Relief: Court orders to stop violations or clarify rights.
- Attorney’s Fees and Costs: Reasonable legal fees for successful plaintiffs.
- Notice Requirement: Before seeking statutory damages, consumers must provide the business with 30 days’ written notice of the alleged violation. If the business cures the violation within this period and provides written assurance of compliance, statutory damages may be avoided (though actual damages and other remedies remain available).
- No Cure for Actual Damages: The 30-day cure period does not apply to claims for actual damages, injunctive relief, or attorney’s fees.
CPRA Development Timeline
| Date | Milestone |
|---|---|
| June 28, 2018 | CCPA signed into law, introducing private right of action |
| January 1, 2020 | CCPA effective date |
| July 1, 2020 | CCPA enforcement begins |
| November 3, 2020 | CPRA passed via Proposition 24, amending CCPA |
| January 1, 2023 | Most CPRA amendments, including enhanced private right of action, become effective |
| July 1, 2023 | CPRA enforcement begins |
Business Obligations to Mitigate Private Right of Action Risks
To minimize exposure to private right of action lawsuits, businesses must implement robust data protection measures and compliance strategies. Key obligations include:
1. Adopt Reasonable Security Measures
Businesses must maintain security practices appropriate to the nature of the personal information they handle. This includes:
- Implementing encryption for sensitive data in transit and at rest.
- Deploying firewalls, intrusion detection systems, and regular security updates.
- Conducting regular vulnerability assessments and penetration testing.
- Training employees on data security and phishing prevention.
2. Develop a Data Breach Response Plan
A proactive response plan is critical for addressing breaches and responding to consumer notices:
- Establish a breach notification protocol compliant with California law (Cal. Civ. Code § 1798.82).
- Create a process for evaluating and curing violations within the 30-day notice period.
- Maintain records of breach responses and remediation efforts for compliance documentation.
3. Update Privacy Notices
Ensure your privacy notice clearly explains:
- Categories of sensitive personal information collected.
- Security measures in place to protect data.
- Consumer rights, including the private right of action and how to submit violation notices.
- Contact methods for privacy-related inquiries.
4. Monitor Regulatory Updates
The CPRA is subject to ongoing regulatory clarification by the CPPA. Businesses should:
- Subscribe to CPPA updates and review proposed regulations.
- Consult legal counsel to interpret evolving requirements.
- Adjust security and compliance practices as needed.
Common Mistakes to Avoid
Businesses often make errors that increase their vulnerability to private right of action lawsuits:
- Failing to encrypt sensitive personal information, leaving it vulnerable to breaches.
- Ignoring or inadequately responding to consumer violation notices within the 30-day cure period.
- Neglecting to train employees on data security, leading to preventable breaches.
- Omitting private right of action details in privacy notices, reducing transparency.
- Underestimating the scope of “reasonable” security measures, resulting in inadequate protections.
- Failing to document compliance efforts, which can weaken defenses in litigation.
Why Manual Compliance Falls Short
Relying on manual processes to manage CPRA compliance, particularly for the private right of action, presents challenges:
- Regulatory Complexity: The CPRA’s evolving rules require constant monitoring.
- Resource Demands: Manual security and compliance updates are time-intensive and costly.
- Risk of Oversight: Human error can lead to missed notices or inadequate breach responses.
- Scalability Issues: Growing businesses face increasing data volumes, complicating manual oversight.
- Litigation Exposure: Non-compliance can result in significant financial and reputational damage.
Leveraging Automated Compliance Solutions
Tools like Captain Compliance’s Privacy and AI Compliance Automation Suite can streamline CPRA compliance and reduce private right of action risks. Benefits include:
- Automated Security Monitoring: Real-time detection of vulnerabilities and breaches.
- Dynamic Privacy Notices: Notices that adapt to regulatory and business changes.
- Breach Response Automation: Streamlined processes for evaluating and curing violations.
- Compliance Documentation: Audit-ready records of security measures and responses.
- Multi-Jurisdictional Support: Alignment with CPRA, CCPA, GDPR, and other frameworks.
Privacy Pro Tip: Automating compliance with tools like the ones developed here by our superhero team at Captain Compliance minimizes litigation risks, enhances consumer trust, and allows businesses to focus on growth rather than regulatory burdens. Use privacy as a competitive advantage not a disadvantage.
CPRA Private Right of Action & CCPA Private Right of Action Avoidance Tips
The CPRA’s private right of action empowers California consumers to hold businesses accountable for data privacy breaches, making robust security and compliance essential. By implementing reasonable security measures, updating privacy notices, and leveraging automated tools like Captain Compliance’s Privacy and Security Suite, businesses can mitigate risks and build consumer confidence. Staying proactive and informed is key to navigating the CPRA’s complex requirements.
Begin strengthening your CPRA compliance today to protect your business and customers. Too avoid private rights of actions from California consumers you need to add a cookie consent banner that is properly configured, a truthful privacy notice that stays up to date, a cookie transparency page that outlines and displays your tracking technologies, and a data subject request portal so data subjects can exercise their rights should they please.
