Hair Color Firm's Virtual Try-on Feature Violates BIPA, Says Complaint

Hair color products company Madison Reed lacks a publicly available written policy showing a retention schedule and guidelines for permanently destroying biometric identifiers and information used for its virtual try-on feature, alleged a Friday privacy class action (docket 4:23-cv-4039) in U.S. District Court for Central Illinois in Rock Island.

In February 2021, plaintiff Holly Goodell of Macomb, Illinois, used the Madison Reed feature on her iPhone to try different hair color products, but she ended up not buying. The augmented reality technology captured and collected her face geometry data, but the website didn’t inform her how long it would store or use that data, the complaint said. She doesn’t know if it will be permanently deleted, it said.

Madison Read provides a link to its privacy policy on its website, but the policy doesn’t inform the user how the user’s face geometry data is collected, used or retained in order for the AR feature to work, said the complaint. Face geometry is a biometric identifier protected by Illinois’ Biometric Information Privacy Act (BIPA)

The class action alleges two violations of BIPA: (1) failure to inform in writing and to obtain a written release from users before capturing, collecting or storing biometric identifiers and (2) failure to develop and make publicly available a written policy for retention and destruction of biometric identifiers.

The plaintiff seeks liquidated damages of $1,000 per negligent violation, $5,000 per willful or reckless violation or actual damages; pre- and post-judgment interest; attorneys’ fees and costs; and an injunction barring the company from further collection of biometric identifiers without written release. Goodell also seeks an order requiring Madison Reed to develop a written policy governing retention and deletion of biometric information.