Class Action Says MakeupByMario.com ‘Virtual Try-On’ Tool Unlawfully Captures Facial Scans

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A proposed class action lawsuit claims MakeupByMario, Inc. (MBM) has captured Illinois consumers’ biometric facial scans without consent through a “virtual try-on” feature on MakeupByMario.com.

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The 15-page complaint claims that the “virtual try-on” tool on the cosmetic company’s website violates the Illinois Biometric Information Privacy Act (BIPA) by collecting “complete face geometry scans” without prior consent and “unbeknownst to the website user.” According to the lawsuit, MBM has also breached the BIPA by failing to provide guidelines as to how long users’ biometric data will be stored and if it will be destroyed.

Shoppers on MakeupByMario.com can virtually preview how they look wearing certain cosmetics, such as lipstick, eyeliner and foundation products, by clicking the “TRY IT ON” button to the right of applicable products’ pictures and below the “ADD TO CART” button, the suit relays. The user is then presented with the choice to either preview the products live or upload a photo of themselves, the case says.

If a consumer selects the “LIVE MAKEUP” button, the “virtual try-on” tool “automatically activates the user’s computer webcam or smartphone camera” and overlays the makeup product atop his or her “real-time image,” the complaint explains. Alternatively, consumers who upload a photo are similarly presented with an image of the cosmetics applied to the provided picture, the filing adds.

As the lawsuit tells it, the scan of facial data—recognized as a biometric identifier by the BIPA—is gathered without users’ knowledge or consent, and on the website, no public policy exists that outlines how long the information will be stored or if it will be destroyed, as required by law.

The plaintiff, an Illinois resident, has used MBM’s “virtual try-on” feature several times in the past year to preview certain cosmetic products, the suit shares. By doing so, the plaintiff’s facial geometry data was captured by the company, though, like other visitors to the website, the woman neither gave her consent nor was informed how long her information would be stored, the case claims.

The lawsuit looks to represent anyone residing in Illinois whose biometric data was collected by MakeupByMario through the use of the “virtual try-on” tool on MakeupByMario.com.

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