VPPA Claim Against Viacom Dismissed With Prejudice
Yesterday, Judge Stanley Chesler of the United States District Court for the District of New Jersey dismissed once and for all a Video Privacy Protection Act (“VPPA”) claim against Viacom based on its operation of certain Nickelodeon websites. Plaintiffs in the matter had alleged that Viacom violated the VPPA by disclosing to Google (Viacom’s analytics provider) certain information including users’ IP addresses, browser settings, unique device identifiers, operating systems, and browser versions, along with the titles of the Nickelodeon videos they watched. Plaintiffs further alleged that by using this information in combination with other information it had access to from other services it offered, Google could potentially identify individuals.
In July 2014, the court dismissed Plaintiffs’ initial VPPA claim, holding that “there is simply nothing on the face of the statute or in its legislative history to indicate that ‘personally identifiable information’ includes the types of information – anonymous user IDs, a child’s gender and age, and information about the computer used to access Viacom’s websites – allegedly collected and disclosed by Viacom.” In doing so, the court explained “that PII is information which must, without more, itself link an actual person to actual video materials.” Finding that Plaintiffs’ VPPA claim was potentially curable, however, Judge Chesler’s July 2014 dismissal was without prejudice.
In September 2014, Plaintiffs filed a Second Amended Complaint to try to cure the deficiencies identified by Judge Chesler. The Second Amended Complaint identified an additional piece of data called a “DoubleClick cookie identifier” that Viacom allegedly disclosed to Google. Plaintiffs did not allege, however, that this cookie itself included or disclosed users’ actual names. Rather, the crux of Plaintiffs’ argument remained that because Google owns a “vast network of services” such as Google.com, Gmail and YouTube, each of which collects data about users, sometimes including their full names, Google could take the information Viacom sends it and identify specific people by name.
Judge Chesler, however, was not moved by Plaintiffs’ amendment. He first noted that he had already concluded that PII “is information which must, without more, itself link an actual person to actual video materials,” underlining in his opinion the words “without more” and “itself.” He then observed that “[n]othing in the amended Complaint changes the fact that Viacom’s disclosure does not – ‘without more’ – identify individual persons.” Judge Chesler also held that “[e]ven if the Court were to consider what Google could do with the information, rather than the nature of the information itself, Plaintiffs’ claim would still fail because it is entirely theoretical.” He pointed out as an example that in order for Google to connect the information Viacom provides it with the identify of an actual Plaintiff, that Plaintiff would need to have registered for one of Google’s products, but the Second Amended Complaint contained no allegation that any Plaintiffs registered with Google.
Judge Chesler thus concluded that “[a]t bottom, the [Second Amended Complaint] includes no allegation that Google can identify the individual Plaintiffs in this case, as opposed to identifying people generally, nor any allegation that Google has actually done so here.” Accordingly, Judge Chesler dismissed Plaintiffs’ VPPA claim once again, this time with prejudice.
Photo by Sebastlen Wlertz from Flickr
Photo cropped from original