The Eleventh Circuit affirmed the dismissal of a putative class action against CNN in a case concerning the CNN app that the plaintiff downloaded to his iPhone. Perry v. Cable News Network, Inc., 2017 WL 1505064 (11th Cir. Apr. 27, 2017). The plaintiff Perry alleged that CNN violated the Video Privacy Protection Act (“VPPA”) by tracking his view of news articles and videos and collecting a record of his activity that was disclosed to third parties. CNN argued in response that the plaintiff did not have standing under the Supreme Court’s Spokeo decision; that the plaintiff was not a “consumer” as defined in the VPPA; and that it did not provide “personally identifiable information” to a third party.
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), strengthened the requirements for Article III standing, requiring allegations of a concrete injury rather than a mere statutory violation. In rejecting CNN”s argument that Perry failed to allege a sufficiently concrete injury, the Eleventh Circuit pointed to the long history of recognition of the right of privacy and held that because an individual has an interest in preventing disclosure of personal information, violation of the VPPA by wrongful disclosure satisfied Article III’s requirements.
CNN fared better with its second argument. The VPPA prohibits a “video tape service provider [from] knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider.” 18 U.S.C. § 2710(b). The statute further defines “consumer” as “any renter, purchaser, or subscriber,” and the plaintiff argued that he was a subscriber of CNN, requiring an “ongoing commitment or relationship” between them. Id. § 2710(a)(1); Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1257 (11th Cir. 2015). Applying Ellis, which held that a person is not a subscriber where he downloads an app for free and uses it to view content at no cost, the court concluded that Perry was not a subscriber. Notably, he had not established an account with CNN, provided any personal information, made any payments, become a registered user, received a CNN ID, or established a CNN profile.
Perry tried to argue that this ongoing relationship with CNN was demonstrated by his proposed amendment alleging that he received exclusive content on the CNN app based on his relationship with his cable TV provider, but the court rejected this argument. Perry’s “exclusive” ability to watch live TV through the app stemmed from his relationship with his cable TV provider, not with CNN. In distinguishing the facts of the First Circuit’s decision in Yershov v. Gannett Satellite Information Network., Inc., 820 F.3d 482 (1st Cir. 2016), the Eleventh Circuit left open the possibility that a consumer could give value other than money, such as mobile device identification number or GPS location, in order to establish an “ongoing commitment.” But that was not the case here.
Finding that Perry was not a “consumer” under the VPPA, the court did not need to address whether CNN provided Perry’s “personally identifiable information” to a third party. Even with Perry’s proposed amendment, his complaint would not state a claim, so the Eleventh Circuit affirmed the district court’s decision that an amendment would be futile.
Posted by Keith Emanuel.