NBCU Cites 2nd Circuit ‘Ordinary Person’ Standard as Basis for Dismissal of VPPA Case
NBCUniversal Media (NBCU) cited a May 1 appeals court ruling that the Video Privacy Protection Act (VPPA) applied only to the disclosure of information that would allow an ordinary person to learn a specific individual's video-watching history as reasoning for a district court to dismiss a VPPA case against it (see 2505010046).
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NBCU is accused in case 22-09858 of using the Meta tracking pixel to collect viewing information on Today.com without user consent.
“This Court now has the benefit of dispositive guidance from the U.S. Court of Appeals for the Second Circuit in assessing the viability of Plaintiff’s theory of liability under the Video Privacy Protection Act,” said NBCU in its motion to dismiss.
Plaintiff Sherhonda Golden’s allegations “about the purported disclosures at issue are materially identical to those addressed by the Second Circuit. Accordingly … she does not and cannot plausibly allege that [NBCU] disclosed her identity or the titles of any video materials she viewed on Today.com in a manner that could be understood or even accessed by an ordinary person and, in turn, does not allege an actionable disclosure of [personally identifiable information (PII)]."
This is Golden’s fourth amended complaint in Golden v. NBCUniversal Media. U.S. District Court for Southern New York Judge Paul Engelmayer previously sided with NBCU and dismissed the suit, ruling that Golden didn't count as a “consumer” under the VPPA because she is a digital subscriber of Today.com and has no video-viewing benefits from that subscription (see 2505120062).
But following the 2nd Circuit’s October ruling in NBA v. Salazar, which interpreted "consumer" differently (see 2504150047), Engelmayer said he would reconsider this ruling, and allowed Golden to file another amended complaint.