Mapping VPPA Trends
Last month, the Eleventh Circuit affirmed dismissal of a Video Privacy Protection Act (“VPPA”) claim brought against ZwillGen client CNN based on its operation of the free CNN App for iPhone. Plaintiff Ryan Perry had alleged that the App’s transmission of the title of news clips viewed on the App along with the device identifier (“MAC Address”) of the iPhone used to view such clips to an analytics provider violated the VPPA. The Northern District of Georgia originally dismissed the claim on two alternative grounds: 1) As the Eleventh Circuit had previously held in a VPPA case brought against CNN’s sister company, Cartoon Network, Perry’s downloading of the free CNN App to watch video clips did not make him a “subscriber” entitled to the VPPA’s protection because it established no ongoing commitment or relationship with CNN; and 2) A MAC address is not “personally identifiable information” under the VPPA because it does not, without more, link an actual person to actual video materials. The District Court also denied Perry’s request that he be allowed to amend his complaint to add allegations that his subscription to a cable television package that included CNN as one of its channels made him a “subscriber” of CNN.
On appeal, a panel of the Eleventh Circuit unanimously affirmed. The court held that its decision in the Cartoon Network case controlled and required the conclusion that Perry was not a subscriber within the meaning of the VPPA. The court explained that just like the plaintiff in Cartoon Network, “Perry did not sign up for or establish an account with CNN, provide any personal information to CNN, make any payments to CNN . . . become a registered user of CNN or its app, receive a [CNN] ID, establish a [CNN] profile, sign up for any periodic services or transmissions, [or] make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content.” The court found irrelevant the fact that Perry subscribed to a cable package including CNN, noting that “[a]t most, the cable subscription shows that Perry is a subscriber of his cable television provider.” Because the court affirmed on the subscriber ground it never reached the issue of whether a device identifier is “personally identifiable information” under the VPPA, leaving the District Court’s ruling on that ground intact.
The Eleventh Circuit’s decision marks a continuation of the trend in VPPA cases. To date, no VPPA case brought against a media company based on videos offered via an App or online has resulted in liability to a defendant. The below interactive map shows the outcome of several other important VPPA cases.