PHILADELPHIA – The Philadelphia Inquirer has moved to dismiss a consolidated class action lawsuit, which alleged the newspaper disclosed some of their subscribers’ personal information to Facebook without their consent, in violation of the Video Privacy Protection Act (VPPA).
Jason Braun of Lafayette Hill and Jim Cummings of Pennsauken, N.J. (on behalf of all others similarly-situated) first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Oct. 19 versus Philadelphia Inquirer, LLC.
“Plaintiffs bring this action in response to defendant’s practice of knowingly disclosing its subscribers’ personally identifiable information – including a record of every video clip they view – to Facebook without first obtaining its digital subscribers’ express consent in a stand-alone consent form that complies with the VPPA’s statutory requirements,” the suit said.
“The Philadelphia Inquirer used first-party and third-party cookies, software development kits, pixels, Facebook’s Business Tools, including Advanced Matching and Conversion API, to purposely track, record, collect, and transmit its digital subscribers’ interactions with inquirer.com. Defendant purposely sent its digital subscribers’ viewing history and personally identifiable information to its third-party business partners, including Facebook.”
The suit added the defendant “knowingly installed the Facebook Pixel tool onto inquirer.com and controlled which types of information and data would be tracked and transmitted to Facebook.”
“Importantly, defendant shared its digital subscribers’ Personal Viewing Information – i.e. digital subscribers’ unique FIDs and viewed video content – together s one combined data point. Because a digital subscriber’s FID uniquely identifies their individual Facebook user account, Facebook, or any other ordinary person, can use it to quickly and easily locate, access, and view a digital subscriber’s corresponding Facebook profile. Put simply, defendant shares its digital subscribers’ viewed video media in a manner that allows third-parties to know each and every video an individual has viewed on inquirer.com. Defendant profited from its practice of disclosing digital subscribers’ Personal Viewing Information to Facebook, and it did so at the expense of its digital subscribers’ privacy and their statutory rights under the VPPA,” the suit stated.
“Because defendant’s digital subscribers were not informed about this dissemination of their Personal Viewing Information – indeed, the transmission of data is automatic and invisible – they could not exercise reasonable judgment to defend themselves against the highly personal ways The Philadelphia Inquirer has used their data for its own benefit. Defendant chose to disregard plaintiffs’ and hundreds of thousands of other digital subscribers’ statutorily protected privacy rights by releasing their sensitive data to Facebook. Accordingly, plaintiffs bring this class action lawsuit for legal and equitable remedies to redress defendant’s practices of intentionally disclosing its digital subscribers’ Personal Viewing Information to Facebook in knowing violation of VPPA.”
A Dec. 5 stipulation filing sought to consolidate the instant case with a similar one brought by plaintiff Stephanie Carter against The Philadelphia Inquirer. The motion was granted and Carter was later substituted as a plaintiff on Feb. 17.
UPDATE
The Philadelphia Inquirer motioned to dismiss the consolidated class action complaint on April 14, for failure to state claims upon which relief could be granted.
“First, the VPPA claim must be dismissed because plaintiffs have not plausibly alleged the essential elements to assert a cognizable claim. For there to be a violation of the VPPA, plaintiffs must allege a knowing disclosure to a third-party of (1) plaintiffs’ identities, and (2) the specific titles of videos they requested or viewed on the Inquirer.com website or the mobile application. Neither of these elements are present in the complaint. The FID that plaintiffs claim discloses their identities is a digital cookie that Facebook creates and Facebook assigns to Facebook users like plaintiffs. Under the Third Circuit’s holding in In re Nickelodeon Consumer Privacy Case Litigation, this type of digital cookie identifier is not personally identifiable information under the VPPA because it is not the type of information that would easily enable an ordinary person to identify an individual. On this basis, the Third Circuit in In re Nickelodeon Consumer Privacy Litigation affirmed the dismissal of a VPPA claim for failure to allege the essential element of personally identifiable information under the VPPA. This precedent requires the same result here. In addition, the VPPA claim also must be dismissed because the URL containing the name of a webpage that an Inquirer subscriber may have visited, does not constitute the disclosure of video viewing information to support a cognizable claim,” the motion stated.
“Second, the PA Wiretapping Act claim also must be dismissed. The PA Wiretapping Act claim fails because Plaintiffs do not allege the essential element of the interception of the ‘contents of an electronic communication’ to support a cognizable claim. The FID and URL data that plaintiffs claim is transferred to Facebook without their consent is not substantive information about the content of a communication, but rather is ‘transactional information’ about an electronic communication taking place. Since the disclosure of transactional information is not prohibited under the PA Wiretapping Act, the claim should be dismissed on this basis. Separately, the PA Wiretapping Act claim should be dismissed because plaintiffs expressly consented to the Inquirer sharing their personal information under the Inquirer’s Privacy Policy. Plaintiffs also impliedly consented to the sharing their personal information through their use of the internet and by becoming as Facebook users who agreed to have their internet actions tracked via the Facebook Cookie that Facebook assigns to them and installs on their web browsing devices. Plaintiffs’ express and implied consent to the sharing of information disposes of any claimed violation of the PA Wiretapping Act asserted here.”
The defendant also argued that the plaintiffs “do not plausibly allege any cognizable injury they sustained from the purported sharing of their video viewing information.”
For counts of violating the Video Privacy Protection Act and unjust enrichment, the plaintiffs are seeking the following reliefs:
• An order declaring that defendant’s conduct, as described herein, violates the VPPA;
• For defendant to pay $2,500 to each plaintiff and class member, as provided by the VPPA;
• For punitive damages, as warranted, in an amount to be determined at trial;
• For pre-judgment interest on all amounts awarded;
• For an order of restitution and all other forms of equitable monetary relief; and
• For an order awarding plaintiffs and the class their reasonable attorneys’ fees and expenses and costs of suit.
The plaintiffs are represented by Arthur M. Stock and Gary M. Klinger of Milberg Coleman Bryson Phillips Grossman in Knoxville, Tenn. and Chicago, Ill., John A. Macoretta of Spector Roseman & Kodroff in Philadelphia, plus Adam E. Polk, Jessica Doker, Kimberly Macey and Simon S. Grille of Girard Sharp in San Francisco, Calif.
The defendant is represented by Angelo A. Stio III, Avrohom C. Einhorn and Ronald I. Raether Jr. of Troutman Pepper Hamilton Sanders, in Philadelphia and Irvine, Calif.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-04185
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com