McCausland v. Gray Television, Inc.

Background

David McCausland alleged that Gray Media Group, Inc. violated the Video Privacy Protection Act (VPPA), 18 U.S.C. § 2710, by sending Facebook his Facebook identifier and information about videos he watched on westernmassnews.com. He alleged that he subscribed to the website using his personal email address, maintained a Facebook account, watched videos while logged into Facebook, and did not consent to the disclosure.

Gray Media moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that McCausland lacked standing because he had not suffered a legally recognized injury. It also moved under Rule 12(b)(6), arguing that the amended complaint did not state a valid VPPA claim, including because McCausland was not a qualifying VPPA “consumer.”

Standing

The court treated the standing challenge as fact-based, meaning it considered evidence beyond the complaint. That evidence included testimony that Facebook Pixel was placed on westernmassnews.com around November 2018 and remained there until February 2022, as well as McCausland’s testimony that he watched videos during that period. The court concluded that this evidence was sufficient to demonstrate an injury in fact from the alleged disclosure of private information to Facebook.

The court rejected Gray Media’s reliance on McCausland’s browser history, Facebook activity records, and testimony that he did not know whether video-viewing information had been transmitted. The court concluded that these materials did not undermine the alleged injury. It therefore denied the motion to dismiss to the extent it was based on lack of Article III standing.

Failure to State a Claim

The VPPA creates a claim for a person whose personally identifying information is knowingly disclosed by a video-service provider without authorization. The statute defines a “consumer” as a renter, purchaser, or subscriber of goods or services from a video-service provider, and defines a video-service provider as a business involved in renting, selling, or delivering prerecorded video or similar audiovisual materials.

McCausland alleged that he entered his email address to receive free newsletters containing links to articles and videos. The court held that the amended complaint did not allege that newsletter subscription was required to access the website’s videos, functioned as a login, enhanced the viewing experience, or provided extra benefits related to watching videos.

Following the reasoning of another Southern District of New York decision, the court held that the VPPA’s reference to a “subscriber” concerns a subscriber to audiovisual materials, not merely a subscriber to a newsletter that advertises or links to generally accessible videos. Because McCausland had not adequately alleged that he was a VPPA consumer, the court granted Gray Media’s Rule 12(b)(6) motion for failure to state a claim.

Disposition

The court granted the motion to dismiss pursuant to Rule 12(b)(6) and dismissed the amended complaint. The order did not state that the dismissal was with or without prejudice. The court granted leave to move to amend and required any such motion to explain how the identified defects would be addressed, attach a proposed second amended complaint, and be filed by April 15, 2024. The clerk was directed to terminate the motion.