9th Circuit Rejects VPPA Claims Against Netflix For Intra-Household Disclosures

9th Circuit Rejects VPPA Claims Against Netflix For Intra-Household Disclosures

Plaintiffs sued Netflix under the Video Privacy Protection Act for Netflix’s display of a subscriber’s queue and recommendation list on televisions connected to the subscriber’s account. In other words, if a household is sitting around in front of a television that accesses someone’s Netflix’s account, all of the household could view the account-holder’s queue and recommendation lists:

The content of these lists, as a result are visible to family members, friends, or guests of Netflix subscribers who use a subscriber’s account to stream videos, or are in the presence of a subscriber when she is accessing her account through a Netflix-ready device.

Plaintiffs contended this violated the VPPA’s prohibition on disclosure of “personally identifiable information concerning any customer” to “any person”. The district court granted Netflix’s motion to dismiss, and the Ninth Circuit affirms. (Blog post on the district court ruling here: “No Privacy Claim Against Netflix for Disclosing Viewing Histories and Instant Queue Titles Through Netflix-Enabled Devices — Mollett v. Netflix“.)

The VPPA excludes certain disclosures, among which are disclosures to the consumer in question. The court says that the disclosure by Netflix fits within this:

The fact that a subscriber may permit third parties to access her account, thereby allowing third parties to view Netflix’s disclosures, does not alter the legal status of those disclosures. No matter the particular circumstances at a subscriber’s residence, Netflix’s actions remain the same: it transmits information automatically to the device that a subscriber connected to her Netflix account. The lawfulness of this disclosure cannot depend on circumstances outside of Netflix’s control.

Plaintiffs suggested that Netflix should have given subscribers more granular control over how their information was displayed, or should have taken measures to prevent inadvertent disclosures to third parties, but the court rejects this:

the VPPA does not prescribe a technical regime for disclosure.

Plaintiffs also brought a state law claim but it failed for the same reason (the statute excluded disclosures to subscribers themselves).

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This lawsuit totally stretched the VPPA, much like the lawsuits against companies (including Netflix) over failure-to-purge user information. Netflix offered many features as a convenience, and plaintiffs tried to make Netflix pay for its design choices. It is hard to see how this lawsuit was in anyone (other than the lawyers’) interest. I’m surprised the court’s tone was not a bit more harsh towards the plaintiffs.

The VPPA resulted in some early settlements (Beacon, the Netflix recommendation engine), but overall, VPPA lawsuits based on wrongful disclosures have not fared well.

Case citation: Mollett v. Netflix, Inc., No. 12-17045 (9th Cir. July 31, 2015)

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