Courtney Jorstad  |  December 20, 2013

Category: Consumer News

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Hulu privacy class action lawsuit

 

UPDATE 1: A federal judge trimmed a number of claims from the Hulu privacy class action lawsuit on April 28, 2014, but the case continues.

UPDATE 2: 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 3: On Oct. 23, 2015, both parties voluntarily agreed to drop the appeal to the Hulu video privacy class action lawsuit

Hulu, LLC is fighting back hard against a proposed privacy class action lawsuit that accuses the streaming television service of violating subscribers’ rights by disclosing their viewing habits to third parties. Hulu filed two separate motions this week asking the Court to deny class certification and to have the case dismissed. Plaintiffs hit back on Friday by arguing that Hulu is asking the Court to interpret a video privacy law differently than any other court ever has.

On Monday, Dec. 16, Hulu filed an opposition to plaintiffs’ motion to have the case certified as a class action, saying that the lawsuit contains erroneous claims that run contrary what actually happened.

Hulu doesn’t deny sharing customer viewing information with third parties such as comScore and Facebook, but the internet TV company explained that the information it sent was in the form of “anonymous numerical User IDs, such as 50253776.”

“Plaintiffs’ case and class motion depend on whether someone at comScore could have figured out (or ‘reverse engineered’) the name of user ‘50253776’ and then linked that to the video information to identify what that user watched,” Hulu stated in its motion.

The situation is similar with the information shared with Facebook.

“Plaintiffs’ other class theory, concerning the Facebook ‘datr’ cookie, also turns on whether someone at Facebook could have used the alphanumerical data contained in that cookie to reverse engineer the name of a Hulu user and the title of the video the user watched,” the company added.

And the problem with both of these scenarios, according to Hulu, is that there’s no evidence that any kind of reverse engineering ever happened.

“Further, as a matter of law, and as explained in Hulu’s comScore/Facebook summary judgment motion, sending an anonymous ID number is not a ‘disclosure’ of ‘personally identifying information’ under the [Video Privacy Protection Act], and the law does not impose liability on Hulu for the theoretical actions of a third party,” Hulu explained.

Interpreting Video Rental Law in an Internet Age

The Hulu privacy class action lawsuit has been hotly contested in court ever since it was filed in 2011. Plaintiffs claim that when Hulu.com disclosed their viewing selections to third parties without their consent that it violated their privacy under the Video Privacy Protection Act (VPPA).

Hulu argued in 2011 that since it was a video-streaming company, not a brick-and-mortar store, that the VPPA didn’t apply to the company.

Judge Laurel Beeler disagreed with Hulu’s reasoning, saying that when the law was enacted it was for the purpose of protecting the privacy of individuals and their viewing preferences. The medium does not matter, she said.

Congress passed the VPPA in 1998 when video rental titles of Supreme Court nominee Robert Bork were published in a Washington-area newspaper, which turned out to be relatively dull.

On Thursday, Hulu’s legal team asked Judge Beeler to dismiss the Hulu privacy class action lawsuit, arguing that plaintiffs have no evidence that users were injured by the disclosures. The next day, attorneys for the plaintiffs shot back by saying there’s “not a single allegation of the complaint that is contradicted by undisputed material fact… [and] of the tens of thousands of documents produced, Hulu does not rely on a single one in support of its motion.”

“Instead, Hulu attempts to rewrite the VPPA in order to argue that the very activity pled in the complaint should now be found to be benign,” class counsel said in court papers filed Dec. 20.

“Hulu does not dispute Plaintiffs’ allegations about user information that was sent to comScore and Facebook. Hulu does not dispute that comScore and Facebook received the name of each video viewed. Rather, the gravamen of Hulu’s motion is that it did not violate the VPPA because, under its tortured reading, the only way to identify an individual under the VPPA is by the disclosure of a name (or an address),” the opposition states.

“Hulu, in a vain attempt to avoid liability, asks this Court to add to VPPA a requirement that identification of an individual means solely the disclosure of a name, in contravention of VPPA’s plain reading and legislative history. Plaintiffs respectfully request that this Court look to Hulu’s actions during the Class Periods, and reject its wholly unsupportable statutory interpretation, never before held by any court.”

Class counsel urged Judge Beeler to deny Hulu’s motion to strike certification of the Class, saying plaintiffs need time to complete their source code review to prove they were injured by Hulu’s actions. “Yet, even at this juncture, sufficient evidence has been adduced to demonstrate not only that Hulu’s summary judgment motion is without basis but also that Plaintiffs’ claims have merit,” they said.

Judge Beeler indicated at the Dec. 19 hearing that she felt it was too early in the case to determine whether Hulu’s actions harmed consumers because discovery isn’t complete.

The plaintiffs are represented by Parisi & Havens LLP, KamberLaw LLC, Strange and Carpenter and the Law Offices of Joseph H. Malley

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.

—Additional reporting by Sarah Pierce.

 

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3 thoughts onLegal Tussle Over Hulu Privacy Class Action Lawsuit Heats Up

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  2. Top Class Actions says:

    UPDATE: A federal judge trimmed a number of claims from the Hulu privacy class action lawsuit on April 28, 2014, but the case continues. More info: http://topclassactions.com/lawsuit-settlements/lawsuit-news/25467-judge-trims-hulu-privacy-class-action-lawsuit/

  3. PRIVACY CRUSADER says:

    The following transaction was entered on 12/20/2013 at 11:49 PM PST and filed on 12/20/2013
    Case Name: IN RE HULU PRIVACY LITIGATION
    Case Number: 3:11-cv-03764-LB
    Filer:
    Document Number: 162
    Docket Text:
    Order by Magistrate Judge Laurel Beeler denying [124] Motion for Summary Judgment.(lblc1S, COURT STAFF) (Filed on 12/20/2013)

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