On September 19, 2022, a Massachusetts District Court denied Boston Globe Media Partners LLC's (the Globe) motion to dismiss a class action suit brought against it in what could be a boon for consumers' demands to protect their digital privacy. The action is one of 47 proposed class actions filed since February 2022 against various companies based on their use of Meta's Pixel tracking tool.
The Globe is a multimedia organization that maintains the website bostonglobe.com requiring digital subscriptions—a requirement which includes subscribers revealing their personally identifiable information (PII). David Ambrose, representing the putative class, alleged that the Globe disclosed subscribers' information without their permission by hosting “the Facebook Tracking Pixel—a piece of code that ‘tracks the people and type of actions they take' by capturing a digital subscriber's action and sending a record of that action to Facebook.” Ambrose v. Boston Globe Media Partners LLC, 2022 U.S. Dist. LEXIS 168403 (D.Mass., Sept. 19, 2022). Plaintiffs allege such a disclosure violates the federal Video Privacy Protection Act (VPPA), a law requiring companies to obtain consumers' informed and written consent to disclose their information.
Under the VPPA, plaintiffs “must allege that ‘a video tape service provider . . . knowingly disclose[d], to any person, personally identifiable information concerning any consumer of such provider.” In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 279 (3d Cir. 2016). A video tape service provider refers to “any person, engaged in business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio-visual materials.” 18 U.S.C. § 2710(a)(4). And personally identifiable information refers to “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3).In the case against the Globe, the judge found that the plaintiffs had plausibly stated a claim for relief—(1) that the Globe is engaged in the business of providing video content to its subscribers; (2) that it disclosed PII, including subscribers' Facebook ID, email, first and last name, mailing address, and what videos the subscriber had viewed; and (3) that subscribers to the Globe's videos are plausibly consumers under the law.
An uptick in claims against companies' use of Meta's tracking tool under the VPPA suggests a broadened use of the law. Congress originally passed the VPPA after a news publication learned of several films Robert Bork's family had rented at a local video rental store without Bork's consent during the period surrounding his nomination to the Supreme Court. Plaintiffs are now using the law to prevent companies from disclosing information relating to their viewing habits online—perhaps a nod to consumer thirst for digital privacy protections.
While the Ambrose court denied the defendant's motion to dismiss, the success of VPPA claims protecting against companies' use of the Meta tracking tool is far from certain. Of the 47 proposed class action suits, five have been voluntarily dismissed. Most of the other cases have not yet reached the discovery phase. But the stakes are high. The VPPA allows any person injured by the act to bring suit and the damages can be steep. 18 U.S.C. § 2710(c)(1). Awards include actual damages (though not less than $2,500 per injured person), punitive damages, reasonable attorneys' fees, and other litigation costs. 18 U.S.C. § 2710(c)(2)(A)-(C). Considering that a class can consist of hundreds of thousands of consumers, companies have reason to watch these VPPA claims closely.
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