N.D. California Dismisses VPPA Class Action Against Netflix
On 8/17/12, the North District of California granted Netflix’s motion to dismiss a class action alleging that the company violated the Video Privacy Protection Act (“VPPA”) and California Civil Code § 1799.3(a) by displaying a list of recently viewed and intended-to-be-viewed videos on users’ TV screens while other individuals were also present and able to view the users’ screens. (Mollet v. Netflix, Inc., No. 5:11–CV–01629–EJD)
Plaintiffs claimed that some subscribers access Netflix’s Internet video streaming service through a “Netflix Ready Device” (such as a video game console, a DVD or Blu-ray player, an Internet-ready TV, or a set-top box), which can then be used to stream Netflix video content to users’ TVs. The plaintiffs alleged that once configured, the device allowed anyone who accessed the device or anyone (such as family members in the same home) watching the same screen to which the device was attached to see lists of the subscriber’s recently watched video titles, tagged titles for later viewing, and other custom-generated lists of content. The plaintiffs argued that such unrestricted display of each of these lists on a subscriber’s TV violated the VPPA and § 1799.3, both of which prohibit video tape/rental service providers from disclosing personally identifiable information (“PII”) concerning any consumer to any person other than that consumer. Under the statutes, PII includes information identifying the types of video content or services obtained by an individual.
Second, the court agreed with Netflix that any third-party disclosures were not made knowingly under the VPPA or willingly under § 1799.3. Although plaintiffs alleged that Netflix knew that some of its subscribers sometimes accessed their devices in the presence of other people, the court held that it was unable to draw a reasonable inference from the complaint that Netflix knew that people other than the plaintiffs were present when the devices displayed PII on any individual occasion. Instead, the court concluded that those circumstances were necessarily outside of Netflix’s control or potential knowledge when it sent information to the devices.