Carter v. Scripps Networks, LLC

Background

Crystal Carter, Susan Cifelli, and Letitia Taylor brought a proposed class action against Scripps Networks, LLC, which the opinion refers to as HGTV. They alleged that HGTV’s website, hgtv.com, disclosed information to Facebook that allowed Facebook to identify their video-viewing activities. The alleged information included data sent through Facebook tracking code, a Facebook cookie, and other information connected to videos the plaintiffs watched.

The plaintiffs each subscribed to at least one HGTV newsletter by providing an email address and choosing a newsletter theme. The complaint alleged that the newsletters primarily directed readers to articles and videos on hgtv.com. It did not allege that a newsletter subscription was required to watch the website’s videos, served as a login, enhanced the viewing experience, or gave subscribers additional video content or benefits.

The plaintiffs asserted one claim under the Video Privacy Protection Act of 1988, a federal law that restricts disclosure of personally identifying information about a consumer’s video use. They sought statutory damages and an order requiring the conduct to stop. HGTV moved to dismiss under Rule 12(b)(1), which concerns federal-court jurisdiction and standing, and Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim.

Standing

The court denied HGTV’s Rule 12(b)(1) motion. Article III standing requires an injury in fact, a connection between the injury and the defendant’s conduct, and a likelihood that a favorable court decision would remedy the injury.

At the pleading stage, the court held that the complaint plausibly alleged a concrete injury. The alleged disclosure of the plaintiffs’ private information and video-viewing activities to Facebook was sufficiently similar to the traditionally recognized harm of disclosing private information. The court therefore concluded that the alleged injury was connected to HGTV’s conduct and could be remedied by a favorable decision.

Whether the Plaintiffs Were VPPA Subscribers

The court granted HGTV’s Rule 12(b)(6) motion. The Video Privacy Protection Act protects a “consumer,” defined in relevant part as a renter, purchaser, or subscriber of goods or services from a video-tape service provider. The court read that definition in context and concluded that the protected renter, purchaser, or subscriber must have obtained audio-visual goods or services, rather than unrelated goods or services from the same business.

The court accepted that the plaintiffs plausibly subscribed to HGTV newsletters. But it held that the complaint did not plausibly allege that they subscribed to HGTV’s video services. The newsletters promoted or directed readers to videos, but the complaint did not allege that subscribing was necessary to access the videos, affected the viewing experience, functioned as a login, or provided extra benefits. The plaintiffs could watch or not watch hgtv.com videos without an ongoing obligation.

Because the complaint did not plausibly allege that the plaintiffs were subscribers of the video services, it also did not plausibly allege that they were covered “consumers” under the statute. The court dismissed the claim. It did not reach HGTV’s separate argument that the information sent to Facebook—including a Facebook ID, internet-protocol address, and videos watched—was not plausibly alleged to be personally identifying information under the Act.

Disposition

The court denied HGTV’s motion to dismiss for lack of Article III standing and granted HGTV’s motion to dismiss for failure to state a claim. The conclusion states that the defendant’s motion to dismiss is granted and directs the Clerk to terminate the motion. The opinion does not state that the dismissal is with or without prejudice.