A federal judge won’t let FuboTV turn off a class action under the Video Privacy Protection Act.
In one of his final actions from the bench before his death June 11, U.S. District Judge Harry Leinenweber issued an opinion June 4 rejecting the company’s motion to dismiss a complaint from Ne’Tosha Burdette, who alleged Fubo improperly disclosed her history of watching programs on the streaming platform to third parties, including information she said could help identify her and her requests to view specific content.
According to Leinenweber, the relevant language within the VPPA requires content providers to obtain written consent for intentional disclosures of personal identifiers, which “includes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”
Fubo didn’t argue whether Burdette provided consent, but instead said the complaint lacks sufficient allegations of unlawful disclosure and doesn’t establish Fubo meets the law’s definition of “video tape service provider.” They also asserted the law’s “ordinary course” exception applies to the alleged conduct.
Leinenweber said Fubo’s privacy policy — like that of Tubi, a now-defunct streaming service that also faced privacy litigation — employed “conjectural language” about what the platform “may” do and for what potential purposes.
“Tubi’s policy did contain a section on the California Consumer Privacy Act notice in which it disclosed that it had affirmatively shared certain relevant categories of information, including (personally identifiable information) and device history, to third party advertisers,” Leinenweber wrote. “It is also true that Fubo’s privacy policy does not contain such a detailed and affirmative statement regarding which kinds of information it did share with third parties as opposed to may have shared. But there are a few reasons why this difference does not foreclose Burdette’s claims.”
For one thing, Leinenweber wrote, Tubi’s privacy policy factored only as circumstantial evidence in its litigation. Second, Fubo’s policy specifically affirms disclosure of subscriber information while asserting the information doesn’t personally identify users. He also said Fubo’s annual reports disclosed potential for VPPA litigation due to the “use of subscriber data to deliver relevant advertising.”
Leinenweber rejected Fubo’s request to define “personally identifiable information” as only that which would “readily permit an ordinary person to identify a specific individual’s video-watching behavior.” In addition to saying that standard hasn’t been applied in his judicial district, Leinenweber also said Burdette’s allegations involve data that would satisfy the standard.
“Here, the annual reports, the privacy policy and the press report offer sufficient circumstantial evidence to infer that Fubo disclosed customer information in a non-VPPA-compliant manner,” Leinenweber wrote.
As to whether Fubo qualifies as a “video tape service provider,” Leinenweber rejected Fubo’s position that since the VPPA applies only to recorded content, and Fubo provides both recorded and live content, Burdette should need to specify which type of content she watched to bring a VPPA claim. He said that “logic impermissibly elevates the legal standard Burdette must overcome at the motion to dismiss stage.”
Finally, Leinenweber said Fubo failed to show the alleged disclosures would fall under the VPPA’s exception for disclosures deemed “incident to the ordinary course of business of the video tape service provider,” including “order fulfillment” and “request processing.” He noted a citation to a 1988 Senate Judiciary Report was off-base in light of a 2014 U.S. Seventh Circuit Court of Appeals opinion in Sterk v. RedBox Automated Retail and noted “targeted marketing and advertising analytics have only ballooned in complexity and pervasiveness in the decade since” and advertising doesn’t fall within an “ordinary course of business” exception.
Fubo’s corporate communications department declined to comment on the litigation.