Cable TV Site Visitor's Video Privacy Claim Fails Because She Wasn't a ‘Subscriber'

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April 8 — A woman who visited cable television network AMC's website to watch video clips can't maintain a Video Privacy Protection Act claim over the alleged sharing of her personal information with Facebook because she doesn't qualify as a subscriber under the statute, a federal district court ruled April 7.

A person “must do more than simply take advantage of a provided service—even if doing so alone allows a provider to access her information—in order to have acted as a ‘subscriber' of the provider,” Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York wrote.

Although Buchwald granted AMC Network Entertainment LLC's and AMC Networks Inc.'s motion to dismiss, she also granted the named plaintiff's request to amend the complaint.

Another district court recently dismissed a similar proposed class action against online streaming TV service Hulu LLC (In re Hulu Privacy Litig., No. 3:11-cv-03764-LB (N.D. Cal. Mar. 31, 2015)).

Standing to Sue 

Plaintiff Ethel Austin-Spearman visited AMC's website to watch video clips from the television show “The Walking Dead.” As she viewed these video clips, she alleged, AMC disclosed her Facebook ID and the titles of the videos she watched to Facebook. She filed a putative class action against AMC, alleging that it disclosed her and others' personally identifiable information in violation of the VPPA, 18 U.S.C. § 2710.

The court concluded that the plaintiff's allegations that AMC disclosed her personal information in violation of the VPPA alone were enough to establish standing.

A plaintiff who asserts claims under the VPPA only needs to assert that his or her information was wrongfully disclosed to establish an injury in fact for Article III standing “because the VPPA creates a specific right to relief for disclosures made in violation of the statute,” the court said.

“Notably, every court to have addressed this question has reached the same conclusion, affirming that the VPPA establishes a privacy right sufficient to confer standing through its deprivation,” the court said.

Not a Subscriber 

The court, however, concluded that Austin-Spearman doesn't fall within the VPPA's definition of “consumer”: a “renter, purchaser, or subscriber of goods or services from a video tape service provider.”

There was no argument that Austin-Spearman was a renter or purchaser, the court said. Nor did she establish a relationship that characterized her as a “subscriber” of AMC's goods or services, it said.

Austin-Spearman didn't take any action to associate herself with AMC, such as paying it for the content on its website, registering an AMC account or downloading an application, the court said. Nor did she allege that her visits to the AMC website were regular or periodic.

“Such casual consumption of web content, without any attempt to affiliate or connect to the provider, exhibits none of the critical characteristics of ‘subscription' and therefore does not suffice to render Austin-Spearman a ‘subscriber' of AMC,” the court wrote.

The court, however, granted Austin-Spearman leave to amend. Following briefing and oral argument, she claimed that she registered for AMC's newsletter for “The Walking Dead.”

Kravis & File PC and Edelson PC represented the plaintiff. Dentons US LLP represented AMC.

Full text of the court's opinion is available at