MeTV has convinced a federal judge to pull the plug on a class action alleging the broadcaster enabled Meta to track the viewing habits of people who claimed to subscribe to the classic television network.
Three named plaintiffs filed a putative class action complaint against MeTV in October, alleging the company violated the Video Privacy Protection Act when it disclosed personal “video viewing” histories associated with unique Facebook identifiers to Facebook's parent company, Meta. They also brought a claim of unjust enrichment.
According to Jenkins, the lawsuit claims users watched MeTV content on the network’s website through the browsers they used to log in to Facebook. They said the “personally identifiable information” provided when signing up for a MeTV account, including at least names and email addresses, allowed MeTV to share information with Meta through the Meta Pixel, defined as a “snippet of programming code that, once installed on a webpage, sends information to Meta… when a user views a prerecorded video on MeTV’s website.”
The lawsuit is similar to other actions filed in 2022 by other plaintiffs against a host of other defendants including Paramount, Buzzfeed, Warner Brothers Discovery, Major League Baseball and the National Football League, among others. Broadly, the complaints allege purveyors of online video content didn’t obtain consent to share data with Meta where it is paired with “a string of numbers unique to each Facebook profile that personally identifies the user,” according to the MeTV complaint.
In arguing for dismissal, MeTV first said the plaintiffs don’t meet the VPPA’s definition of “consumers.” Jenkins said the plaintiffs conceded they don’t meet the law’s definition of “renters” or “purchasers,” but argued their status as MeTV “subscribers” gives them standing to sue.
The word “subscribers”, however, is undefined in the VPPA, Jenkins wrote, adding that “the absence of a definition for this term has spurred voluminous briefing in this matter, as well as a variety of recent opinions from other district courts,” ultimately noting the issue of VPPA liability for owners of websites with video content is unsettled.
“MeTV notes that anyone can view videos on MeTV’s website, without the need for a login, which is patently insufficient to be a ‘subscriber,’ as plaintiffs have not provided personal information in return for access to video content,” Jenkins wrote. “Plaintiffs argue they are subscribers under the Act because their creation of MeTV profiles reflects ‘an ongoing commitment or relationship with MeTV,’ regardless of ‘whether non-subscribers can watch the same videos for free.’ ”
Although Jenkins agreed with the plaintiffs that a payment is not required to establish someone as a subscriber within the context of the VPPA, the judge said the plaintiffs failed to show how creating a free MeTV account distinguishes them from anyone who watched MeTV videos without registering a profile. She added there are 9.9 million monthly visitors to the MeTV website, and whether any of those visitors watched a video didn’t depend on a personal obligation or exchanging anything of value with the network.
Jenkins said several cases from multiple districts support MeTV’s position, and noted the plaintiffs didn’t demonstrate how the information they gave to MeTV earned access to special content or represented an ongoing commitment by either party.
“These cases only support MeTV’s contention,” Jenkins wrote. “The video content available on its website can be accessed by anyone, and because plaintiffs receive nothing ‘in return’ for a MeTV login, they are not ‘subscribers’ under the Act.”
Jenkins said she didn’t need to consider MeTV’s other arguments for dismissal and, because the unjust enrichment claim dependent on the VPPA allegations, dismissed both without prejudice. She set a July 27 deadline for a third amended complaint.
Plaintiffs have been represented in the action by attorneys Gary M. Klinger, of Milberg Coleman Bryson Phillips Grossman, of Chicago; Philip L. Fraietta and Joshua D. Arisohn, of Bursor & Fisher, of New York; and Adam E. Polk and Simon Grille, of Girard Sharp, of San Francisco.
MeTV has been represented by attorney Eric Christian Bosset, of Covington & Burling, of Washington, D.C.; and Daniel L. Stanner, of Tabet DiVito Rothstein, of Chicago.