Ninth Circuit Affirms Dismissal of VPPA Claims Against Netflix (and Netflix Users Rejoice)

Published On August 20, 2015 | By Anna Hsia | Video Privacy Protection Act (VPPA)

Netflix operates the world’s largest subscription service for viewing video content. One great feature Netflix offers is the ability to use Netflix-ready devices (such as your connected television with a Netflix app) to access Netflix. You just need to enter your username and password, and you can watch Netflix from your TV. After you’ve entered your credentials once, you do not need to go through the slow (and irritating) task of entering your log-in information each time you want to access Netflix on that device.

Plaintiffs in Mollett v. Netflix, Inc., 5:11-CV-01629-EJD (N.D. Cal.) took issue with this feature of Netflix, alleging it violated the Video Privacy Protection Act (“VPPA”) by allowing disclosure of a Netflix user’s viewing history to other individuals in the household with access to the Netflix-connected device. Plaintiffs also alleged violation of a related California statute on these grounds since according to plaintiffs, anyone in that Netflix user’s household could theoretically see the Netflix user’s viewing history by accessing Netflix through the Netflix-connected device.

The District Court dismissed the complaint with prejudice, holding that the VPPA expressly permits the alleged “disclosure” here, and on July 31, 2015, the Ninth Circuit affirmed in Mollett v. Netflix, Inc., No. 12-17045 (9th Cir. July 31, 2015), noting that the VPPA expressly permits disclosures to the consumer. And that’s precisely what happened here, because the Netflix user herself authenticated the particular device by entering her username and password:

The fact that a subscriber may permit third parties to access her account, thereby allowing third parties to view Netflix’s disclosures, does not alter the legal status of those disclosures. No matter the particular circumstances at a subscriber’s residence, Netflix’s actions remain the same: it transmits information automatically to the device that a subscriber connected to her Netflix account. The lawfulness of this disclosure cannot depend on circumstances outside of Netflix’s control.

Plaintiffs contended that Netflix should have implemented “technical fixes to prevent incidental disclosures to third parties.” Not persuaded, the Ninth Circuit held that the VPPA merely prohibits unlawful disclosures—it does not require secure disclosure.

This lawsuit lacked laudable goals. The Ninth Circuit’s decision affirmed that the claim was entirely meritless. And Netflix users themselves can rejoice that this lawsuit has not stripped them of a consumer-friendly feature.

Photo by anieto2k from Flickr

About The Author

Anna Hsia maintains a diverse practice litigating complex business disputes and counseling clients on privacy issues. With broad litigation experience in unfair competition, false advertising, class actions, and other complex litigation, Anna guides clients through disputes in federal and state courts. As a Certified Information Privacy Professional, Anna has assisted clients with product development and compliance with privacy regulations such as the TCPA, HIPAA, COPPA, state-specific privacy regulations, the Gramm-Leach-Bliley Act, and the Fair Credit Reporting Act.

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