Disclosures Need Not Contain Customers’ Actual Names to Violate the Video Privacy Protection Act Rules Hulu Court

By on May 9, 2014

In the latest of a string of victories for the plaintiffs in the Video Privacy Protection Act (VPPA) class action litigation against Hulu, LLC, the U.S. District Court for the Northern District of California ruled that Hulu’s sharing of certain customer information with Facebook, Inc. may have violated the VPPA, even though Hulu did not disclose the actual names of its customers.  The ruling leaves Hulu potentially liable for the disclosures under the VPPA and opens the door to similar claims against other providers of online content.

The decision by U.S. Magistrate Judge Laurel Beeler addressed Hulu’s argument on summary judgment that it could not have violated the VPPA because Hulu “disclosed only anonymous user IDs and never linked the user IDs to identifying data such as a person’s name or address.”  The court rejected Hulu’s argument, stating that “[Hulu’s] position paints too bright a line.”  Noting that the purpose of the VPPA was to prevent the disclosure of information “that identifies a specific person and ties that person to particular videos that the person watched” the court held that liability turned on whether the Hulu’s disclosures were “merely an anonymized ID” or “whether they are closer to linking identified persons to the videos they watched.”

Under this principle, the court held that Hulu’s disclosures to comScore, a metrics company that Hulu employed to analyze its viewership for programming and advertising purposes, did not violate the VPPA.  According to the court, Hulu’s disclosure to comScore included anonymized user IDs and other information that could theoretically be used to identify the particular individuals and their viewing choices.  But the plaintiffs had no evidence that comScore had actually used the information in that way.  As the evidence did not “suggest any linking of a specific, identified person and his video habits” the court held that the disclosures to comScore did not support a claim under the VPPA.

But the court held that Hulu’s disclosure to Facebook had potentially violated the VPPA.  Hulu’s disclosures to Facebook included certain cookies that Hulu sent to Facebook that allowed Hulu to load a Facebook “Like” button on users’ web browsers.  The court held that the cookies that Hulu sent to Facebook to accomplish this task “together reveal information about what the Hulu user watched and who the Hulu user is on Facebook.”  The court noted that this disclosure was “not merely the transmission of a unique, anonymous ID”; rather it was “information that identifies the Hulu user’s actual identity on Facebook” as well as the video that the Facebook user was watching.  Thus, the court held, Hulu’s disclosures to Facebook potentially violated the VPPA.

The Court’s ruling that disclosure of seemingly anonymous IDs can potentially lead to liability under the VPPA should cause companies that are potentially covered by the law to reexamine the ways in which they provide data to third parties.  Such companies should carefully consider not only what information is disclosed but also how the recipients of that data can reasonably be expected to use the information.  Additionally, any company that may be subject to the VPPA should consider taking advantage of 2013 amendments to the law, which significantly expand companies’ ability to avoid liability by obtaining advanced consent for otherwise prohibited disclosures.

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