Court Drops Video Privacy Case Against NBCU, Citing 'Ordinary Person' Standard
A federal court dropped a Video Privacy Protection Act (VPPA) case against NBCUniversal Media (NBCU) Wednesday, ruling that the complaint did not adequately allege the disclosure of personally identifiable information (PII) within the meaning of the statute.
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The decision comes in the wake of Solomon v. Flipps Media at the 2nd U.S. Circuit Court of Appeals, which employed the ordinary person standard. It holds that an ordinary person could identify an individual from the transmitted information for it to be a violation of the statute (see 2505010046 and 2508110052).
“In short, because the alleged disclosure could not be appreciated -- decoded to reveal the actual identity of the user, and his or her video selections -- by an ordinary person but only by a technology company such as Facebook, it did not amount to PII,” said Judge Paul Engelmayer.
The same point and conclusion were reached recently in Hughes v. NFL (see 2508190026), and in Nixon v. Pond5. The allegations in these cases “do not materially differ from those” in plaintiff Sherhonda Golden’s complaint, Engelmayer said. Information that a Facebook tracking pixel transferred consisting of a "screenshot consisting of several jumbled lines of code separated by characters, numbers, and letters [would be] unintelligible to ordinary persons,” the judge added.
Golden filed four versions of her class-action complaint in case 1:22-cv-09858, beginning in November 2022, alleging that NBCU used the Facebook pixel to track her viewing information on Today.com, where she is a digital subscriber, without her consent (see 2505120062). NBCU had employed the ordinary person standard as a reason to drop the case (see 2506060030).