Dow Jones’ Disclosure Of User Viewing History Found Not To Violate Video Privacy Protection Act

by King & Spalding
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On January 23, 2015, the U.S. District Court for the Northern District of Georgia held that disclosure of user viewing history and a Roku viewing device serial number by Dow Jones Company (“Dow Jones”) did not violate the Video Privacy Protection Act, 18 U.S.C. § 2710 (the “VPPA”). In dismissing a putative class action, the court ruled that the plaintiff had failed to allege that the disclosed information (i.e., the plaintiff’s viewing history and Roku serial number) constituted personally identifiable information (“PII”) under the VPPA.

Dow Jones offers users free, on-demand content – in this instance, the “Wall Street Journal Live Channel” – that the Plaintiff viewed regularly on a Roku streaming video device. Under the VPPA, “video tape” providers like Dow Jones may not “knowingly disclose” a consumer’s PII, which the statute defines as “information which identifies a person as having requested or obtained specific video materials or services from a video tape provider.” See 18 U.S.C. § 2710(a)(3) and (b). Dow Jones shared the plaintiff’s viewing history and Roku device serial number with mDialog, a third-party analytics and advertising company, without the plaintiff’s consent. The plaintiff had argued that such a disclosure constituted a violation of the VPPA’s prohibitions against disclosure of PII.

The District Court held that despite not paying for access to the online video content, the plaintiff was a “subscriber” and a “consumer” under the VPPA with standing to challenge Dow Jones’ disclosure. However, as noted above, the court held that the plaintiff had failed to state a claim under the VPPA because she had not successfully alleged that the information Dow Jones had disclosed constituted PII under the VPPA. The court held that a “Roku serial number, ‘without more,’ is not akin to identifying a particular person and therefore, is not PII” under the VPPA. The court held that the facts as presented were substantially similar to a line of other recent decisions involving VPAA claims against providers working with third parties, in that mDialog would have had to take additional steps, including gaining information from sources other than Dow Jones, in order to match the Roku number and viewing history to the plaintiff. See In re Hulu Privacy Litig., No. 3:11-cv-03764-LB, 2014 BL 120236 (N.D. Cal. Apr. 28, 2014)); In re Nickelodeon Consumer Privacy Litig., No. 2:12-cv-07829, 2014 BL 186702 (D.N.J. July 2, 2014)); and Ellis v. Cartoon Network, Inc., No. 1:14-cv-484-TWT, 2014 BL 283139 (N.D. Ga. Oct. 8, 2014)). Because of this, the court held that the information disclosed by Dow Jones in this instance did not constitute PII under the VPPA. A copy of the court’s complete decision is available by clicking here.

Reporter, Ehren K. Halse, San Francisco, +1 415 318 1216, ehalse@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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