Cartoon Network Gets Legal Victory Over Claims of Violating Privacy

Federal appeals court rules that someone who merely watches free videos on a mobile app isn't a "subscriber."
Cartoon Network

Cartoon Network is the latest entertainment company to successfully beat back claims of violating the Video Privacy Protection Act thanks to a ruling on Friday by the 11th Circuit Court of Appeals.

The VPPA is the federal law enacted in the 1980s after The Washington Post published a list of videos rented by then-Supreme Court nominee Robert Bork. In recent years, many class actions have been attempted with the idea of leveraging the VPPA to guard the digital privacy of those watching videos online. A series of court decisions, though, have favored defendants. For example, Hulu and Viacom scored summary judgment wins in their own lawsuits earlier this year.

On Friday, the 11th Circuit took a look at a lower court's decision to dismiss claims against Cartoon Network, which offers a mobile app for those who want to watch such shows as Tom and Jerry, Looney Tunes, Pokemon and Transformers. The plaintiffs in the case allege that Cartoon Network tracks user mobile device identification numbers and, along with a record of video clips watched, shares the information with a third-party data analytics company.

To be a violation of the VPPA, Cartoon Network would have had to knowingly disclose personally identifiable information of a consumer, defined as "any renter, purchaser, or subscriber."

Circuit Judge Adalberto Jordan decides that Mark Ellis, the lead plaintiff, can't be considered a "subscriber" as there isn't enough of a relationship between him and Cartoon Network. Not only did he not pay any fees, but he didn't register at the site, didn't create a profile and didn't sign up for any services.

"In our view, downloading an app for free and using it to view content at no cost is not enough to make a user of the app a 'subscriber' under the VPPA, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app," states the opinion. "Importantly, such a user is free to delete the app without consequences whenever he likes and never access its content again. The downloading of an app, we think, is the equivalent of adding a particular website to one’s Internet browser as a favorite, allowing quicker access to the website’s content."

The opinion (read here in full) will buttress the developing legal conclusion that the VPPA won't be a digital privacy guard, especially after the statute was amended by Congress in 2012 to allow online service providers to do even more sharing by getting written consent.

However, entertainment companies might feel less comfortable about privacy obligations outside of the United States after the European Court of Justice last week invalidated a "safe harbor" pact dealing with data transfers from the E.U. to the U.S. in large part because the privacy of its citizens weren't be sufficiently protected in the U.S. That case dealt directly with Facebook and has been analyzed in the context of large tech companies, though implications for digital entertainment shouldn't be ignored.

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