April 25, 2023
On April 24, 2023, Weil won a complete victory for Scripps Networks, LLC, owned by Warner Bros. Discovery, in a putative nationwide class action alleging violations of the federal Video Privacy Protection Act (VPPA), when the U.S. District Court for the Southern District of New York granted Scripps’ motion to dismiss for failure to state a claim in its entirety.
The plaintiffs in this case subscribed by email to free newsletters when they visited HGTV.com (the website of Scripps’ popular HGTV television network), and allegedly also viewed videos and other content on the HGTV website. The newsletters, though, are a separate offering from the video content found on the website. The plaintiffs alleged that HGTV disclosed their online video-viewing history to Facebook, through the use of an embedded piece of code called the Facebook Tracking Pixel, in violation of the VPPA.
The VPPA was originally enacted in 1988 after a newspaper published information about Judge Robert Bork’s video rental history at a local movie rental store. In relevant part, the VPPA holds that “[a] video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person.”
Believing that the plaintiffs were trying to extend the reach of the VPPA beyond its intended scope of protecting the privacy of video-watching activity, Scripps moved to dismiss. In its Opinion and Order, the court agreed that the plaintiffs failed to state a claim under the VPPA because they did not fall within the statute’s definition of a “consumer.” The court engaged in a close reading and analysis of the statute and relevant precedent, and held that merely subscribing to HGTV.com newsletters – which does not involve purchasing, renting or watching any audio-visual content from HGTV – does not make the plaintiffs “consumers” of video content under the VPPA. As the court explained, “in the statute’s full context, a reasonable reader would understand the definition of ‘consumer’ to apply to a renter, purchaser or subscriber of audio-visual goods or services, and not goods or services writ large.” They were subscribers, the court found, to “newsletters, not subscribers to audio visual materials.”
The court’s decision is an important limitation on the reach of the VPPA given the current volume and extent of class actions being commenced in U.S. courts seeking substantial statutory damage awards under the VPPA (now numbering more than 100 separate cases).