Video Privacy Protection Act Meets Spokeo - and Court Lets Case Continue

In the latest decision involving the application of the Video Privacy Protection Act to modern technology, a federal court in Massachusetts refused to dismiss a putative class action against the company behind the USA Today app.

In late 2013, Alexander Yershov downloaded and began using the USA Today app on his Android device. He sued the app manufacturer, Gannett Satellite Information Network, Inc., alleging that each time he watched a video on the app, the company shared the unique identification number of his smartphone with Adobe Systems, Inc., a third-party data analytics company. This transfer of data constituted a violation of the VPPA, Yershov claimed, because the company disclosed his personally identifiable information (PII) without his consent.

Gannett moved to dismiss, first arguing that the information disclosed was not PII and that Yershov was not a "subscriber" as defined by the statute, because the download and use of the app were free. U.S. District Court Judge F. Dennis Saylor IV agreed, but the First Circuit Court of Appeals reversed on both issues.

On remand, Gannett argued that Yershov lacked standing to bring suit, relying upon the U.S. Supreme Court's recent decision in Spokeo, Inc. v. Robins to assert that the plaintiff failed to allege he suffered a concrete injury sufficient to establish standing. This time, Judge Saylor sided with the plaintiff.

While the justices made clear in Spokeo that "a bare procedural violation, divorced from any concrete harm," would not satisfy the injury-in-fact requirement, Yershov's claim of VPPA violations was more than that, the court said. "Here, the complaint alleges an intangible harm: the invasion of Yershov's privacy interest in his video-viewing history."

Both historical precedents and the judgment of Congress played important roles in this conclusion, the court explained. By enacting the VPPA, lawmakers "elevated an otherwise non-actionable invasion of privacy into a concrete, legally cognizable injury," and English law has long recognized the right to privacy in personal information, particularly information in compilations.

"[T]he VPPA 'plainly' provides plaintiffs like Yershov, who allege wrongful disclosure of their PII, with standing and a right to relief," Judge Saylor wrote, citing a Third Circuit decision that reached a similar conclusion for support. "The intangible harm allegedly suffered by Yershov from Gannett's alleged disclosure of his PII is a concrete injury in fact."

To read the memorandum and order in Yershov v. Gannett Satellite Information Network, Inc., click here.

Why it matters: Courts across the country have struggled to apply the VPPA, adopted in 1988, to 21st-century technology. The First Circuit's opinion finding that Yershov was a "subscriber" for purposes of the statute created a circuit split on the issue, with contrary authority from the Eleventh Circuit and several district courts. In this plaintiff-friendly ruling, the district court found that a statutory violation occurred and the invasion of a consumer's privacy was sufficient to meet the injury-in-fact requirements of Spokeo and Article III.



pursuant to New York DR 2-101(f)

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