A Gordon Rees Scully Mansukhani Cyber, Privacy & Data Security team, including Partner Justin Holmes, Associate Alexandra Sandler, Partner Brian Middlebrook, and Partner Michael Heyden, Jr., obtained a dismissal on behalf of the firm’s healthcare learning platform client in a class action video privacy lawsuit in the United States District Court for the District of Delaware.
The case, covered in an article by National Law Review and Bloomberg Law, stemmed from allegations that GRSM’s client used Meta and TikTok tracking pixels on its website to transmit personally identifiable information (PII) in violation of the Video Privacy Protection Act (VPPA). The complaint alleged that the company disclosed the plaintiff’s and the class members’ identifying information, such as phone numbers and Facebook IDs, along with the fact that they purchased a subscription to its website that contained videos, but did not allege any disclosure of specific videos viewed or requested. In its motion to dismiss, GRSM argued that the alleged disclosures did not constitute PII, which the VPPA defines as information that identifies a person as having requested or obtained specific video materials or services, because the disclosure was not tied to specific videos.
Framing the issue in light of the statute’s origins, GRSM explained that in the context of the video rental era, which the VPPA was designed to address, it would not violate the statute for a company like Blockbuster to disclose that a person was a customer of Blockbuster. Rather, liability arises only where the disclosure connects a particular individual to the specific video he or she watched.
The district court agreed, holding that allegations concerning the disclosure of a subscription only, without identifying any specific video viewed or requested, are insufficient as a matter of law. The court further explained that accepting the plaintiff’s theory would improperly expand the VPPA, imposing liability even where a user never watched a single video. As a result, the court dismissed the case with prejudice.
The decision is a meaningful win for companies facing the growing wave of VPPA claims based on pixel tracking technologies.