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Who Counts as a Subscriber? A Judge Explains in Data Privacy Suit Involving Facebook Tracking Tool


Scripps Network does not need to face a class action lawsuit accusing it of sharing subscribers’ personal viewing histories with Facebook as part of its advertising activities.

A federal judge on Tuesday dismissed the lawsuit, finding that consumers who subscribed to HGTV.com’s newsletter are not covered by a video privacy law that prohibits companies from disclosing information about their viewing habits. The ruling could undermine more than 100 other identical lawsuits against companies ranging from HBO to the NFL challenging opaque data practices in the absence of a federal data privacy law.

The cases all relate to allegations that companies using Meta’s Pixel tool, which allows advertisers to track visitor activity on websites to measure ad effectiveness and create custom audiences for ad targeting, are in violation of the Video Privacy Protection Act. The law provides for legal damages of up to $2,500 per class member and creates a private right for consumers to sue for disclosure of information about their video viewing habits. Meta is not mentioned in any of the complaints.

In a statement, Facebook stressed that advertisers should not send sensitive information about users through its business tools. “This is against our policies and we are informing advertisers to properly set up business tools to prevent this from happening,” the company said. “Our system is designed to filter out potentially sensitive data it can detect.”

The named plaintiffs in the lawsuit each subscribed to at least one HGTV newsletter, alleging that the network sent information to Facebook that allowed the social media platform to identify the videos they viewed on the site.

In a ruling that may limit the reach of the VPPA, U.S. District Judge P. Kevin Castel concluded that users who have signed up for HGTV’s newsletters are not considered “subscribers” of a video service provider.

On dismissal, Scripps argued that subscribers to the newsletter are not considered consumers who can sue alleging violations of the VPPA since there is no charge that they purchased or rented any good or service from HGTV. The argument centered on whether plaintiffs’ subscriptions to HGTV’s newsletter made them “subscribers” covered by the VPPA.

Castel described the relationship between a service and consumers who would qualify them as “subscribers” under the video privacy law. He found that plaintiffs cannot sue for allegedly violating the VPPA since the newsletter, which Scripps uses for marketing purposes, is a separate and distinct part of the network’s video content offerings on its website. While the newsletter may encourage consumers to view the videos, a subscription was not required to access it, he said.

“They were subscribers to newsletters, not subscribers to audiovisual materials,” the judge wrote, noting that “plaintiffs were free to view or not view hgtv.com videos without any obligation of any kind, not unlike any of the other 9 .9 million monthly videos. site visitors.”

The ruling lends weight to defendants’ arguments in identical cases that the fact that a company is engaged in the sale or rental of video content or services does not mean that all of its products fall within the scope of the law.

The court looked at other cases involving alleged violations of the VPPA. In a lawsuit accusing AMC of violating the law by disclosing users’ viewing histories to Facebook, a federal judge concluded that “an individual must do more than just benefit from a service provided — even if it’s just a provider accessing it.” gives to her information – to have acted as ‘subscriber’ of the provider.”

Federal appeals courts have reached conflicting conclusions on whether downloading a mobile app is sufficient to establish subscriber status. The 11th Circuit Court of Appeals has ruled that this is not the case because there is no ongoing relationship between the user and the service, while the 1st Circuit Court of Appeals has ruled that it is if there is some type of transaction, such as the exchange of content for data.

“Because the Indictment does not establish that plaintiffs acted as ‘subscribers’ when they viewed videos on hgtv.com, it is not made plausible that they were ‘consumers’ under the VPPA,” Castel wrote. “The claim will therefore be rejected.”

The scope of the video privacy law remains controversial. Numerous streaming providers, including ESPN and AMC Networks, have been sued for alleged violations of the VPPA over the past decade, with a judge in 2015 ruling in favor of Hulu that it is not liable because it did not knowingly send the data to Facebook.

Merry C. Vega is a highly respected and accomplished news author. She began her career as a journalist, covering local news for a small-town newspaper. She quickly gained a reputation for her thorough reporting and ability to uncover the truth.

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