Summary
This D.C. Circuit opinion addresses whether a plaintiff qualifies as a "consumer" under the Video Privacy Protection Act when she independently visits a news website and watches videos without subscribing to them. The court first holds that the unauthorized disclosure of her video viewing history to a third-party tracking service constitutes a concrete injury for Article III standing purposes, analogous to common-law privacy torts. However, the court ultimately affirms the district court's dismissal because the plaintiff did not rent, purchase, or subscribe to the videos at issue, meaning she falls outside the statutory definition of a protected consumer.
Topics
Practice areas
Questions Presented
- Whether Pileggi had Article III standing to assert that the unauthorized disclosure of her video-viewing history caused a concrete injury.
- Whether a person is a 'consumer' under the Video Privacy Protection Act merely because she purchased, rented, or subscribed to any good or service from a provider that also offers videos.
- Whether the Video Privacy Protection Act protects viewing information concerning videos that the plaintiff did not purchase, rent, or subscribe to.
- Whether subscribing to an email newsletter containing videos or video links made Pileggi a protected consumer with respect to separately viewed website videos.
Holdings
- The unauthorized disclosure of a person's private video-viewing history to a third party constitutes a concrete injury when it closely analogizes to common-law privacy harms, including intrusion upon seclusion and publicity given to private life; Pileggi therefore had standing.
- A plaintiff is a protected 'consumer' only if she rented, purchased, or subscribed to the video or similar audio-visual good or service whose personally identifiable viewing information was disclosed; obtaining an unrelated good or service from the same provider is insufficient.
- The Video Privacy Protection Act creates a cause of action only when the disclosed private information concerns the same video materials or services that the plaintiff rented, purchased, or subscribed to.
Key quotations
“The Video Privacy Act protects the privacy of those who rent, purchase, or subscribe to a video cassette tape or similar audio-visual material.” (18)
“Subscribing to an e-newsletter that includes videos and video links, by itself, is not enough to make someone a “consumer” under the Video Privacy Act.” (30)
Factual background
Pileggi registered to receive the Washington Examiner's email newsletter and separately visited the Washington Examiner's website, where she watched videos. The website allegedly used the Meta Pixel to transmit information about the videos she watched, along with identifying information, to Meta for advertising purposes. Pileggi did not allege that she accessed the website videos through newsletter links, that the Meta Pixel operated in the newsletters, or that information about videos viewed in the newsletter was transmitted.
Procedural history
Pileggi sued Washington Newspaper Publishing Company in the United States District Court for the District of Columbia. The district court dismissed the complaint for failure to state a claim, holding that Pileggi was not a statutory consumer because she had not purchased, rented, or subscribed to the videos whose viewing information was disclosed and because her newsletter subscription was not sufficiently connected to those videos. The D.C. Circuit affirmed.