Hulu Argues Privacy Class Action Lawsuit Should Be Tossed

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UPDATE: The Hulu privacy class action lawsuit was dismissed by a California federal judge on March 31, 2015. The plaintiffs filed an appeal on April 15, 2015.

UPDATE 2: On Oct. 23, 2015, both parties voluntarily agreed to drop the appeal to the Hulu video privacy class action lawsuit

On Tuesday, Hulu LLC filed a motion to dismiss the remaining claims against it in the privacy class action lawsuit that accuses the online movie and TV company of improperly sharing user information with third parties, including Facebook Inc.

Lead plaintiffs alleged in their Hulu class action lawsuit, which was filed in May 2012, that by including the Facebook “Like” button on their website, Hulu violated federal privacy laws, including the Video Privacy Protection Act of 1988 (VPPA), because, when users click on the Facebook “Like” button, a Facebook cookie is triggered that automatically gathers Hulu users’ Facebook user names.

In its motion to dismiss the privacy class action lawsuit, Hulu argued that the company did not knowingly share this information third parties when they installed the button on their website. “More specifically, Hulu did not know: (1) that the Facebook c_user cookie contained the Facebook User ID, or (2) what Facebook did, if anything, with that data.” According to Hulu, “there can be no VPPA violation if either: (1) “Hulu did not know that it was transmitting both an identifier and the person’s video watching information”; or (2) “Hulu never knew that Facebook might ‘read’ the videos and the Facebook ID cookies together in a manner akin to the disclosure of Judge Bork’s videos.’”

“The evidence demonstrates that Hulu did not know that Facebook’s c_user cookies were transmitting Facebook User IDs to Facebook or what Facebook did, if anything, with these transmissions,” Hulu says. “This lack of knowledge is fatal to plaintiff’s VPPA claim.”

“Using the code that Facebook provided to any website that wanted to add the ‘Like’ button, Hulu added the button to its watch pages in August 2010,” Hulu says in its motion to dismiss the privacy class action lawsuit. “When a user’s web browser loads a hulu.com watch page, the only role Hulu plays is to indicate where the ‘Like’ button should be placed on the page and where (from Facebook) to get the code that loads and operates the button.” On that basis, Hulu argues, “Facebook, not Hulu, controls that code. Furthermore, Facebook, not Hulu, controls all Facebook cookies.”

“Hulu was not involved in the cookie’s creation, had no knowledge of its content or its function, did not decide whether it should persist after a user finished a Facebook session, and did not know what, if anything, transmitted upon the mere loading of a ‘Like’ button,” Hulu says.

“After three years of allowing plaintiffs to veer from one proposed VPPA theory to another, the time has come for the court to bring this case to a close,” Hulu says in its motion to dismiss the privacy class action lawsuit once and for all.

The Hulu privacy class action lawsuit also hit a setback in June of this year when a California federal judge found that the class was not ascertainable and denied class certification.

The plaintiffs are represented by Joseph H. Malley of the Law Offices of Joseph H. Malley, David C. Parisi and Suzanne Havens Beckman of Parisi & Havens LLP; Scott A. Kamber, David A. Stampley and Grace E. Tersigni of KamberLaw LLC; and Brian R. Strange and Gretchen Carpenter of Strange & Carpenter.

The Hulu Privacy Class Action Lawsuit is In re: Hulu Privacy Litigation, Case No. 3:11-cv-03764, in the U.S. District Court for the Northern District of California.