Feldman v. Star Tribune Media Company LLC

Background

Kyle Feldman alleged that he subscribed to startribune.com and watched videos there while logged into Facebook on the same browser and device. According to the complaint, the Star Tribune used Facebook Pixel, a code analytics tool, to send Facebook a viewer’s Facebook identification number and the URL of the video viewed. Feldman alleged that this information could identify him and connect him with particular videos. He sought to represent a proposed class of people with Facebook accounts who subscribed to startribune.com and watched one or more videos there.

The Video Privacy Protection Act prohibits a video service provider from knowingly disclosing personally identifiable information about a consumer. The court noted that the statute defines personally identifiable information to include information identifying a person as having requested or obtained specific video materials or services.

Standing

The Star Tribune argued under Rule 12(b)(1), which permits challenges to subject-matter jurisdiction, that Feldman lacked Article III standing. Standing requires a plaintiff to plausibly allege an injury in fact, a sufficient connection between that injury and the defendant’s conduct, and a likelihood that a court decision can remedy the injury.

The court held that Feldman plausibly alleged a concrete injury. He alleged intangible harm from the nonconsensual sharing of his private video-viewing history with Facebook. The court found that this alleged privacy invasion had a close relationship to the traditional legal harm of intrusion upon seclusion, which involves an offensive intrusion into a person’s private affairs. The court also rejected the argument that Feldman’s injury was self-inflicted because he could have changed browser settings, used a different browser, or logged out of Facebook. The availability of those measures did not establish consent or eliminate the alleged causal connection at this stage.

Failure to State a Claim

The Star Tribune also moved under Rule 12(b)(6), which challenges whether a complaint states a legally sufficient claim. It raised three arguments.

First, the company argued that the complaint did not plausibly allege disclosure of personally identifiable information. The court concluded that the alleged simultaneous transmission of Feldman’s Facebook identification number and the URL of the specific video he watched plausibly connected his identity to his video-viewing history.

Second, the company argued that Feldman had not plausibly alleged a knowing disclosure because he did not allege that the Star Tribune knew Facebook would actually combine the Facebook identification number and video URL. The court rejected that interpretation. Once the disclosed information plausibly qualifies as personally identifiable information, the complaint need only plausibly allege that the Star Tribune consciously disclosed it. The court found that the complaint did so.

Third, the Star Tribune argued that Feldman consented through the company’s privacy policy, invoking the Video Privacy Protection Act’s consent exception. The court treated that argument as an affirmative defense and concluded that the privacy policy did not clearly establish at the motion-to-dismiss stage that the statutory consent requirements had been met. The court left the consent issue for a more developed factual record and more thorough legal arguments.

Disposition

The court ordered that the Star Tribune’s motion to dismiss was DENIED. The ruling allowed Feldman’s claim to proceed past the dismissal stage. The opinion did not decide the ultimate merits of the claim or whether the proposed class would be certified.