A potential class action lawsuit against Weigel Broadcasting-owned classic TV and retro radio brand MeTV has been dismissed by an Illinois Federal District Court on the grounds that MeTV did not unlawfully disclose plaintiff’s personal “video viewing” history and associated unique Facebook identification.
As such, MeTV did not violate the “Video Privacy Protection Act” — a decision that could impact broadcast media as it seeks to monetize its online audience.
David Vance Gardner, Jeannetta McElroy, and Early Hayes in October 2022 filed a complaint against MeTV, with claims against the Weigel-owned entity for unjust enrichment included in the lawsuit.
MeTV on January 20 filed a motion to dismiss with the court, which saw Judge Lindsay Jenkins preside over Gardner et al v. MeTV.
On July 6, Jenkins signed off on the dismissal of the case, agreeing with MeTV’s assertion that using the Video Privacy Protection Act was not the correct legal course of action for the plaintiffs.
In its defense, MeTV argued that the VPPA claim should be dismissed for three reasons. First, the plaintiffs are not “consumers” under the Act. Second, the plaintiffs “insufficiently plead that MeTV ‘knowingly disclosed’ to Facebook parent Meta ‘specific video materials.” And, even if the VPPA claim was successful, MeTV claims its conduct falls under the exception for its ordinary course of business.
Gardner, McElroy and Hayes brought the suit to the court on the grounds that Meta shares its users personal information with Meta using a snippet of programming code that, when installed on a browser’s webpage, sends data to Meta when a prerecorded video is viewed on the MeTV website. One must sign up for a MeTV account with a name and email address to view such videos, and because of this the plaintiffs assert that they are “subscribers.”
That’s a key reason why the VPPA claim was made.
Meanwhile, the plaintiffs believe their unique Facebook identification, or FID, to Meta minus their consent via a standalone form.
Jenkins’ decision put the focus on whether or not the plaintiffs are “subscribers,” a term with no clear definition based on prior court decisions used to reach Jenkins’ conclusion. In MeTV’s view, the plaintiffs are not “subscribers,” as their relationship with MeTV “is too insubstantial.” Why? Anyone can view videos on the MeTV website without the need for a login. Thus MeTV argued that the plaintiffs did not provide personal information in exchange for video content.
While the court agrees with the plaintiffs that a monetary transaction is not needed to qualify as a “subscriber,” it does not agree with the plaintiffs’ argument that the
allegations that it opened an account separate and apart from viewing video content
on MeTV’s website is sufficient to render them “subscribers” under the Act.
Reaching that decision saw Jenkins rely heavily on Carter et al v. Scripps Networks, LLC, decided in April 2023. In that case, the court found that the plaintiffs were subscribers to HGTV newsletters, not subscribers to audio visual materials. HGTV.com videos were open to anyone to view, regardless of any subscription.
For Jenkins, “The Carter plaintiffs are indistinguishable from the Plaintiffs here: both had
subscriptions (newsletter or website) of a kind that were unconnected to their ability
to access video content. Neither set of plaintiffs paid for this privilege, made any commitment to do so, otherwise exchanged anything of value to do so, or received special access to certain content. Like the plaintiffs in Carter, Plaintiffs here were subscribers to a website, “not subscribers to audio visual materials,” as they “were free to watch or not watch [MeTV’s] videos without any type of obligation, no different than any of the other 9.9
million monthly visitors to the site.”
Other cases that led Jenkins to agree with MeTV include Jefferson v. Healthline Media, and Perry v. Cable News Network — a case in which the court determined a registration for the CNN app to access video content was not a requirement for accessing such material.
Then, there is Ellis v. Cartoon Network, which held that “‘subscription’ involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.”
What’s next for the plaintiffs? Jenkins notes that they are ordinarily given at least one opportunity to amend their complaint as it is not “certain from the face of the complaint that any amendment would be futile or otherwise unwarranted.”
As such, the plaintiffs may file an amended complaint on or before July 27.
