Citing 'Ordinary Person' Standard, Judge Proposes Dropping Video Privacy Case Against NHL
A case alleging the NHL violated the Video Privacy Protection Act (VPPA) by using Facebook's Meta tracking pixel on its website without user knowledge or consent should be dismissed, U.S. Magistrate Judge Barbara Moses said Friday. Moses argued that the plaintiffs failed to state a claim under the statute in case 1:23-cv-02083, Zachary Joiner vs. NHL.
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The complaint, brought in March 2023 in the U.S. District Court for Southern New York by four plaintiffs who each subscribe to an NHL newsletter, alleges they watched videos on the NHL website on devices that were logged into their Facebook accounts. When subscribing to the newsletters, the plaintiffs shared their personal information, such as email address or ZIP code, but did not consent to having their website activity shared with Facebook or other third parties, which they said is a violation of the VPPA.
The four plaintiffs "failed to plausibly allege that the NHL revealed their personally identifiable information, as that term is used in the VPPA," Moses said. The judge cited the 2nd U.S. Circuit Court of Appeals' use of the ordinary person standard "[i]n determining whether information is capable of being used to identify a consumer's video-viewing history." In that case, Solomon v. Flipps Media, the court ruled an ordinary person must be able to determine a consumer's video-viewing habits from the information collected (see 2505010046).
"Applying the 'ordinary person' standard to facts functionally indistinguishable from those alleged here, the Solomon court held that the use of the Facebook Pixel to capture a subscriber's video viewing history and [Facebook ID] did not violate the VPPA, because the information thereby disclosed was not PII as that term is used in the statute," Moses said.
The standard was also used in Hughes v. NFL (see 2508190026).
"Here, as in Solomon and Hughes, plaintiffs allege that the Pixel captures the name (or a description) of each video that a Subscriber watches," said Moses. Yet the video's name "is 'interspersed with many characters, numbers, and letters,' such that '[i]t is implausible that an ordinary person would ... understand it to be a video title.'"
Moses also said the plaintiffs failed to state a claim under the Wiretap Act, as the interception of material was not for the purpose of committing a crime or tortious act.
Moses' report and recommendation will go to District Judge Lewis Kaplan, who will give the final order in the case.