Hold the presses: Judge rejects Globe request to dismiss lawsuit over 'pixel' trackers on its Web site

A federal judge ruled today that a law originally originally designed to protect people's VHS viewing habits might also apply to people looking at online videos and so tossed the Boston Globe's request he simply dismiss a California man's lawsuit over trackers on bostonglobe.com he claims were sending his video viewing habits to Facebook.

The ruling by US District Court Judge Richard Stearns does not mean that bostonglobe.com subscriber David Ambrose of Irvine, CA wins his suit or even gets to go to trial as lead plaintiff in a class action, just that he's made a plausible enough case to continue through at least pre-trial discovery.

The Globe had argued that the Video Privacy Protection Act, originally passed after a Washington, DC newspaper published Supreme Court nominee Robert Bork's video-rental records in 1987, was meant to be taken extremely literally, that it applied only to physical video rentals and that a video streamed online was hardly the same, especially when it's only an adjunct to an article by a news organization, not something offered by a company that exists mainly to push videos.

Plaintiff does not allege the Globe offers separate video subscriptions or pricing on its website, or that users register with the Globe specifically to receive video content. The relatively scarce video content intermittently present on its website does not transform the Globe from a print news organization into a business "significantly tailored" to providing video content.

In his ruling today, Stearns disagreed, at least for now:

On its face, "construing the well-pleaded facts of [Ambrose's complaint] in the light most favorable to" Ambrose ... Ambrose's VPPA claim plausibly states a claim for relief. The [complaint] alleges that the Globe is engaged in the business of delivering various types of video content to its digital subscribers. Further, Ambrose claims that the Globe knowingly disclosed his [personally identifiable information] (and the PII of other digital subscribers) to Facebook – namely, his Facebook ID, email address, first name, last name, mailing address, and information about what videos he has watched on the Globe website – through its use of Facebook's Tracking Pixel and Advanced Matching tools. Finally, Ambrose and other digital subscribers of the Globe's video and other multimedia services are plausibly consumers as defined by the VPPA. ...

The Globe's arguments in favor of dismissal rely on factual disputes that are not appropriate for disposition at this early stage. "Although one could imagine a different conclusion at summary judgment once the evidence is examined, it is plausible to conclude from these . . . allegations that [the Globe] engages in the business of delivering audio visual materials, and that its business is ‘significantly tailored to serve that purpose.'" In re Facebook, Inc., Consumer Privacy User Profile Litig., 402 F. Supp. 3d 767, 799 (N.D. Cal. 2019), quoting In re Vizio, Inc. Consumer Privacy Litig., 238 F. Supp. 3d 1204, 1221 (C.D. Cal. 2017). Similarly, although it is conceivable that after discovery it will become apparent that the Globe does not (as it maintains) transmit its digital subscribers' PII to Facebook in the manner Ambrose has alleged, at this juncture Ambrose has done enough to state a viable VPPA claim.